[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 7
Agriculture
________________________
Parts 700 to 899
Revised as of January 1, 2018
Containing a codification of documents of general
applicability and future effect
As of January 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
SUBTITLE B--Regulations of the Department of Agriculture
(Continued)
Chapter VII--Farm Service Agency, Department of
Agriculture 5
Chapter VIII--Grain Inspection, Packers and
Stockyard Administration (Federal Grain Inspection
Service), Department of Agriculture 455
Finding Aids:
Table of CFR Titles and Chapters........................ 617
Alphabetical List of Agencies Appearing in the CFR...... 637
List of CFR Sections Affected........................... 647
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 7 CFR 701.1 refers
to title 7, part 701,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(b) The matter incorporated is in fact available to the extent
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2018
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: Parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1759, 1760-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2018.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 700 to 899)
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SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter vii--Farm Service Agency, Department of Agriculture. 701
chapter viii--Grain Inspection, Packers and Stockyard
Administration (Federal Grain Inspection Service),
Department of Agriculture................................. 800
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER VII--FARM SERVICE AGENCY, DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Editorial Note: 1. Nomenclature changes to chapter VII appear at 59 FR
60299, Nov. 23, 1994, as corrected at 59 FR 66438, Dec. 27, 1994, and at
60 FR 64297, Dec. 15, 1995.
SUBCHAPTER A--AGRICULTURAL CONSERVATION PROGRAM
Part Page
700 [Reserved]
701 Emergency Conservation Program, Emergency
Forest Restoration Program, and certain
related programs previously administered
under this part......................... 7
707 Payments due persons who have died,
disappeared, or have been declared
incompetent............................. 19
708 Record retention requirements--all programs. 22
SUBCHAPTER B--FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
714 Refunds of penalties erroneously, illegally,
or wrongfully collected................. 24
718 Provisions applicable to multiple programs.. 26
SUBCHAPTER C--REGULATIONS FOR WAREHOUSES
735 Regulations for the United States Warehouse
Act..................................... 51
743 [Reserved]
SUBCHAPTER D--SPECIAL PROGRAMS
750 Soil Bank................................... 65
755 Reimbursement Transportation Cost Payment
Program for Geographically Disadvantaged
Farmers and Ranchers.................... 65
759 Disaster designations and notifications..... 70
760 Indemnity payment programs.................. 74
761 Farm loan programs; general program
administration.......................... 165
762 Guaranteed farm loans....................... 189
763 Land Contract Guarantee Program............. 228
764 Direct loan making.......................... 236
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765 Direct loan servicing--regular.............. 260
766 Direct loan servicing--special.............. 275
767 Inventory property management............... 328
768 [Reserved]
769 Highly Fractionated Indian Land Loan Program 334
770 Indian tribal land aquisition loans......... 340
771 Boll Weevil Eradication Loan Program........ 344
772 Servicing minor program loans............... 347
773 Special Apple Loan Program.................. 353
774 Emergency Loan for Seed Producers Program... 356
780 Appeal regulations.......................... 359
781 Disclosure of foreign investment in
agricultural land....................... 366
782 End-Use Certificate Program................. 372
784 2004 Ewe Lamb Replacement and Retention
Payment Program......................... 378
785 Certified State Mediation Program........... 382
786 Dairy Disaster Assistance Payment Program
(DDAP-III).............................. 389
789 Agriculture Priorities and Allocations
System (APAS)........................... 397
SUBCHAPTER E--PROVISIONS COMMON TO MORE THAN ONE PROGRAM
792 Debt settlement policies and procedures..... 416
795 Payment limitation.......................... 425
SUBCHAPTER F--PUBLIC RECORDS
798 Availability of information to the public... 432
SUBCHAPTER G--ENVIRONMENTAL PROTECTION
799 Compliance with the National Environmental
Policy Act.............................. 434
[[Page 7]]
SUBCHAPTER A_AGRICULTURAL CONSERVATION PROGRAM
PART 700 [RESERVED]
PART 701_EMERGENCY CONSERVATION PROGRAM, EMERGENCY FOREST RESTORATION
PROGRAM, AND CERTAIN RELATED PROGRAMS PREVIOUSLY ADMINISTERED UNDER
THIS PART--Table of Contents
Subpart A_General
Sec.
701.1 Administration.
701.2 Definitions.
701.3-701.12 [Reserved]
701.13 Submitting requests.
701.14 Onsite inspections.
701.15 Starting practices before cost-share request is submitted; non-
entitlement to payment; payment subject to the availability of
funds.
701.16 Practice approval.
701.17-701.20 [Reserved]
701.21 Filing payment application.
701.22 Eligibility to file for cost-share assistance.
701.23 Eligible costs.
701.24 Dividing cost-share among more than one participant.
701.25 Practices carried out with aid from ineligible persons or
ineligible legal entities.
701.26-701.30 [Reserved]
701.31 Maintenance and proper use of practices.
701.32 Failure to comply with program provisions.
701.33 Death, incompetency, or disappearance.
701.34 Appeals.
701.35 Compliance with regulatory measures.
701.36 Schemes and devices and claims avoidances.
701.37 Loss of control of property during the practice life span.
701.38-701.40 [Reserved]
701.41 Cost-share assistance not subject to claims.
701.42 Assignments.
701.43 Information collection requirements.
701.44 Agricultural Conservation Program (ACP) contracts.
701.45 Forestry Incentives Program (FIP) contracts.
Subpart B_Emergency Conservation Program
701.100-701.102 [Reserved]
701.103 Scope.
701.104 Producer eligibility.
701.105 Land eligibility.
701.106-701.109 [Reserved]
701.110 Qualifying minimum cost of restoration.
701.111 Prohibition on duplicate payments.
701.112 Eligible ECP practices.
701.113-701.116 [Reserved]
701.117 Average adjusted gross income limitation.
701.118-701.125 [Reserved]
701.126 Maximum cost-share percentage.
701.127 Maximum ECP payments per person or legal entity.
701.128-701.149 [Reserved]
701.150 2005 hurricanes.
701.151 Definitions.
701.152 Availability of funding.
701.153 Debris removal and water for livestock.
701.154 [Reserved]
701.155 Nursery.
701.156 Poultry.
701.157 Private non-industrial forest land.
Subpart C_Emergency Forest Restoration Program
701.200-701.202 [Reserved]
701.203 Scope.
701.204 Participant eligibility.
701.205 Land eligibility.
701.206-701.209 [Reserved]
701.210 Qualifying minimum cost of restoration.
701.211 Prohibition on duplicate payments.
701.212 Eligible EFRP practices.
701.213-701.225 [Reserved]
701.226 Maximum financial assistance.
Authority: 16 U.S.C. 2201-2206; Sec. 101, Pub. L. 109-148, 119 Stat.
2747; and Pub. L. 111-212, 124 Stat. 2302
Source: 69 FR 10302, Mar. 4, 2004, unless otherwise noted.
Subpart A_General
Sec. 701.1 Administration.
(a) Subject to the availability of funds, this part provides the
terms, conditions and requirements of the Emergency Conservation Program
(ECP) and the Emergency Forest Restoration Program (EFRP) administered
by the Farm Service Agency (FSA). Neither program is an entitlement
program and payments will only be made
[[Page 8]]
to the extent that the Deputy Administrator announces the eligibility of
benefits for certain natural disasters, the areas in which such benefits
will be available, the time period in which the disaster and the
rehabilitation must occur, and only so long as all the conditions for
eligibility specified in this part and elsewhere in law are met.
However, the Deputy Administrator will not apply any non-statutory
limitation on payments provided for in this part in such a way that it
would necessarily result in the non-expenditure of program funds
required to otherwise be made by law.
(b) ECP and EFRP are administered by the Administrator, FSA through
the Deputy Administrator, FSA, and shall be carried out in the field by
State and county FSA committees (State and county committees), subject
to the availability of funds. Except as otherwise provided in this rule,
discretionary determinations to be made under this rule will be made by
the Deputy Administrator. Matters committed to the discretion of the
Deputy Administrator shall be considered in all cases to be permissive
powers and no person or legal entity shall, under any circumstances, be
considered to be entitled to an exercise of such power in their favor.
(c) State and county committees, and representatives and employees,
do not have authority to modify or waive any regulations in this part.
(d) The State committee may take any action authorized or required
of the county committee by this part, but which the county committee has
not taken, such as:
(1) Correct or require a county committee to correct any action
taken by such county committee that is not in accordance with this part;
or
(2) Require a county committee to withhold taking any action that is
not in accordance with this part.
(e) No provision or delegation herein to a State or county committee
shall preclude the Administrator, FSA, or a designee, from determining
any question arising under the program or from reversing or modifying
any determination made by a State or county committee.
(f) The Deputy Administrator may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
(g) The Deputy Administrator may limit the authority of state and
county committees to approve cost share in excess of specified amounts.
(h) Data furnished by the applicants will be used to determine
eligibility for program benefits. Furnishing the data is voluntary;
however, the failure to provide data could result in program benefits
being withheld or denied.
(i) FSA may consult with any other Federal agency, State agency, or
other provider of technical assistance for such assistance as is
determined by FSA to be necessary to implement ECP or EFRP. FSA is
responsible for the technical aspects of ECP and EFRP but may enter into
a Memorandum of Agreement with another party to provide technical
assistance. If the requirement for technical assistance results in undue
delay or significant hardship to producers in a county, the State
committee may request in writing that FSA waive this requirement for
that county. However, nothing in this paragraph or in this part creates
a right of appeal or action for an applicant with respect to provisions
relating to internal procedures of FSA.
(j) The provisions in this part shall not create an entitlement in
any person or legal entity to any ECP or EFRP cost share or claim or any
particular notice or form or procedure.
(k) Additional terms and conditions may be set forth in the
application or the forms participants will be required to sign for
participation in the ECP or EFRP.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70087, Nov. 17, 2010]
Sec. 701.2 Definitions.
(a) The terms defined in part 718 of this chapter shall be
applicable to this part and all documents issued in accordance with this
part, except as otherwise provided in this section.
(b) The following definitions shall apply to this part:
[[Page 9]]
Agricultural producer means an owner, operator, or tenant of a farm
or ranch used to produce for food or fiber, crops (including but not
limited to, grain or row crops; seed crops; vegetables or fruits; hay
forage or pasture; orchards or vineyards; flowers or bulbs; or field
grown ornamentals) or livestock (including but not limited to, dairy or
beef cattle; poultry; swine; sheep or goats; fish or other animals
raised by aquaculture; other livestock or fowl) for commercial
production. Producers of animals raised for recreational uses only are
not considered agricultural producers.
Annual agricultural production means production of crops for food or
fiber in a commercial operation that occurs on an annual basis under
normal conditions.
Applicant means a person or legal entity who has submitted to FSA a
request to participate in the ECP or EFRP.
Cost-share payment means the payment made by FSA to assist a program
participant under this part to establish practices required to address
qualifying damage suffered in connection with a qualifying disaster.
Deputy Administrator means the Deputy Administrator for Farm
Programs, FSA, the ECP Program Manager, or designee.
Farmland means land devoted to agricultural production, including
land used for aquaculture, or other land as may be determined by the
Deputy Administrator.
Natural disaster means wildfires, hurricanes or excessive winds,
drought, ice storms or blizzards, floods, or other naturally-occurring
resource impacting events as determined by FSA. For EFRP, a natural
disaster also includes insect or disease infestations as determined by
FSA in consultation with other Federal and State agencies as
appropriate.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70087, Nov. 17, 2010]
Sec. Sec. 701.3-701.12 [Reserved]
Sec. 701.13 Submitting requests.
(a) Subject to the availability of funds, the Deputy Administrator
shall provide for an enrollment period for submitting ECP or EFRP cost-
share requests.
(b) Requests may be accepted after the announced enrollment period,
if such acceptance is approved by the Deputy Administrator and is in
accordance with the purposes of the program.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.14 Onsite inspections.
(a) An onsite inspection must be made before approval of any request
for ECP or EFRP assistance.
(b) Notwithstanding paragraph (a) of this section, onsite
inspections may be waived by FSA, in its discretion only, where damage
is so severe that an onsite inspection is unnecessary, as determined by
FSA.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.15 Starting practices before cost-share request is submitted;
non-entitlement to payment; payment subject to the availability of
funds.
(a) Subject to paragraphs (b) and (c) of this section, costs will
not be shared for practices or components of practices that are started
before a request for cost share under this part is submitted with the
applicable county FSA office.
(b) Costs may be shared for drought and non-drought practices or
components of practices that are started before a request is submitted
with the county FSA office, only if:
(1) Considered and approved on a case-by-case basis in accordance
with instructions of the Deputy Administrator;
(2) The disaster that is the basis of a claim for cost-share
assistance created a situation that required the producer to take
immediate action to prevent further losses;
(3) The Deputy Administrator determines that the request for
assistance was filed within a reasonable amount of time after the start
of the enrollment period; and
(4) The practice was started no more than 60 days before the ECP or
EFRP designation was approved for the applicable county office.
[[Page 10]]
(c) Any action taken prior to approval of a claim is taken at the
producer's own risk.
(d) An application for relief may be denied for any reason.
(e) All payments under this part are subject to the availability of
funds.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.16 Practice approval.
(a) Requests shall be prioritized before approval based on factors
deemed appropriate by FSA, which include, but are not limited to:
(1) Type and degree of damage;
(2) Type of practices needed to address the problem;
(3) Availability of funds;
(4) Availability of technical assistance;
(5) Environmental concerns;
(6) Safety factors; or
(7) In the case of ECP, welfare of eligible livestock.
(b) Requests for cost-share assistance may be approved if:
(1) Funds are available; and
(2) The requested practice is determined eligible.
[69 FR 10302, Mar. 4, 2004, and amended at 75 FR 70088, Nov. 17, 2010]
Sec. Sec. 701.17-701.20 [Reserved]
Sec. 701.21 Filing payment application.
Cost-share assistance is conditioned upon the availability of funds
and the performance of the practice in compliance with all applicable
specifications and program regulations.
(a) Completion of practice. After completion of the approved
practice, the participant must certify completion and request payment by
the payment request deadline. FSA will provide the participant with a
form or another manner to be used to request payment.
(b) Proof of completion. Participants shall submit to FSA, at the
local county office, the information needed to establish the extent of
the performance of approved practices and compliance with applicable
program provisions.
(c) Payment request deadline. The time limits for submission of
information shall be determined by the Deputy Administrator. The payment
request deadline for each ECP practice will be provided in the agreement
after the application is approved. Time limits may be extended where
failure to submit required information within the applicable time limits
is due to reasons beyond the control of the participant.
Sec. 701.22 Eligibility to file for cost-share assistance.
Any eligible participant, as defined in this part, who paid part of
the cost of an approved practice may file an application for cost-share
payment.
Sec. 701.23 Eligible costs.
(a) Cost-share assistance may be authorized for all reasonable costs
incurred in the completion of the practice, up to the maximums provided
in Sec. Sec. 701.126, 701.127, and 701.226.
(b) Eligible costs shall be limited as follows:
(1) Costs for use of personal equipment shall be limited to those
incurred beyond the normal operation of the eligible land.
(2) Costs for personal labor shall be limited to personal labor not
normally required in the operation of the eligible land.
(3) Costs for the use of personal equipment and labor must be less
than that charged for such equipment and labor by commercial contractors
regularly employed in such areas.
(4) Costs shall not exceed those needed to achieve the minimum
performance necessary to resolve the problem being corrected by the
practice. Any costs above those levels shall not be considered to be
eligible costs for purposes of calculations made under this part.
(c) Costs shall not exceed the practice specifications in Sec.
701.112(d) or Sec. 701.212(d) for cost-share calculations.
(d) The gross amount on which the cost-share eligibility may be
computed will not include any costs that were reimbursed by a third
party including, but not limited to, an insurance indemnity payment.
(e) Total cost-share payments from all sources shall not exceed the
total of eligible costs of the practice to the applicant.
[69 FR 10302, Mar. 4, 2004, and amended at 75 FR 70088, Nov. 17, 2010]
[[Page 11]]
Sec. 701.24 Dividing cost-share among more than one participant.
(a) For qualifying cost-share assistance under this part, the cost
shall be credited to the participant who personally performed the
practice or who paid to have it performed by a third party. If a payment
or credit was made by one participant to another potential participant,
paragraph (c) of this section shall apply.
(b) If more than one participant contributed to the performance of
the practice, the cost-share assistance for the practice shall be
divided among those eligible participants in the proportion they
contributed to the performance of the practice. FSA may determine what
proportion was contributed by each participant by considering the value
of the labor, equipment, or material contributed by each participant and
any other factors deemed relevant toward performance.
(c) Allowance by a participant of a credit to another participant
through adjustment in rent, cash or other consideration, may be
considered as a cost of a practice to the paying party only if FSA
determines that such credit is directly related to the practice. An
applicant who was fully reimbursed shall be considered as not having
contributed to the practice performance.
Sec. 701.25 Practices carried out with aid from ineligible persons
or ineligible legal entities.
Any assistance provided by someone other than the eligible
participant, including assistance from a State or Federal agency, shall
be deducted from the participant's total costs incurred for the practice
for the purpose of computing ECP or EFRP cost shares. If unusual
conditions exist, the Deputy Administrator may waive deduction of such
contributions upon a request from the State committee and demonstration
of the need for such a waiver.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. Sec. 701.26-701.30 [Reserved]
Sec. 701.31 Maintenance and proper use of practices.
(a) Each participant receiving cost-share assistance is responsible
for the required maintenance and proper use of the practice. Some
practices have an established life span or minimum period of time during
which they are expected to function as a conservation practice with
proper maintenance. Cost-share assistance shall not be authorized for
normal upkeep or maintenance of any practice.
(b) If a practice is not properly maintained for the established
life span, the participant may be required to refund all or part of
cost-share assistance received. The Deputy Administrator will determine
what constitutes failure to maintain a practice and the amount that must
be refunded.
Sec. 701.32 Failure to comply with program provisions.
Costs may be shared for performance actually rendered even though
the minimum requirements otherwise established for a practice have not
been satisfied if a reasonable effort was made to satisfy the minimum
requirements and if the practice, as performed, will adequately address
the need for the practice.
Sec. 701.33 Death, incompetency, or disappearance.
In case of death, incompetency, or disappearance of any participant,
any cost-share payment due shall be paid to the successor, as determined
in accordance with part 707 of this chapter.
Sec. 701.34 Appeals.
Part 11 of this title and parts 614 and 780 of this chapter apply to
determinations made under this part.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.35 Compliance with regulatory measures.
Participants who perform practices shall be responsible for
obtaining the authorities, permits, rights, easements, or other
approvals necessary to the performance and maintenance of the practices
according to applicable laws and regulations. The ECP or EFRP
participant shall be wholly responsible for any actions taken with
respect to the project and shall, in addition, be responsible for
returning and refunding any ECP or EFRP cost shares made,
[[Page 12]]
where the purpose of the project cannot be accomplished because of the
applicants' lack of clearances or other problems.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.36 Schemes and devices and claims avoidances.
(a) If FSA determines that a participant has taken any action
designed to defeat, or has the effect of defeating, the purposes of this
program, the participant shall be required to refund all or part of any
of the program payments otherwise due or paid that participant or
related person or legal entity for that particular disaster. These
actions include, but are not limited to, failure to properly maintain or
deliberately destroying a practice and providing false or misleading
information related to practices, costs, or arrangements between
entities or individuals that would have an effect on any eligibility
determination, including, but not limited to, a payment limit
eligibility.
(b) All or any part of cost-share assistance that otherwise would be
due any participant may be withheld, or required to be refunded, if the
participant has adopted, or participated in, any scheme or device
designed to evade the maximum cost-share limitation that applies to the
program or to evade any other requirement or provision of the program or
this part.
(c) If FSA determines that a participant has employed any scheme or
device to deprive any other person or legal entity of cost-share
assistance, or engaged in any actions to receive payments under this
part that also were designed to avoid claims of the United States or its
instrumentalities or agents against that party, related parties, or
third parties, the participant shall refund all or part of any of those
program payments paid to that participant for the project.
(d) For purposes of this section, a scheme or device can include,
but is not limited to, instances of coercion, fraud, or
misrepresentation regarding the claim for ECP or EFRP assistance and the
facts and circumstances surrounding such claim.
(e) A participant who has knowingly supplied false information or
filed a false claim shall be ineligible for cost-share assistance
related to the disaster for which the false information was filed, or
for any period of time FSA deems appropriate. False information or a
false claim includes, but is not limited to, a request for payment for a
practice not carried out, a false billing, or a billing for practices
that do not meet required specifications.
[69 FR 10302, Mar. 4, 2004, and amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.37 Loss of control of the property during the practice life
span.
In the event of voluntary or involuntary loss of control of the land
by the ECP or EFRP cost-share recipient during the practice life-span,
if the person or legal entity acquiring control elects not to become a
successor to the ECP or EFRP agreement and the practice is not
maintained, each participant who received cost-share assistance for the
practice may be jointly and severally liable for refunding any ECP or
EFRP cost-share assistance related to that practice. The practice life
span, for purposes of this section, includes any maintenance period that
is essential to its success.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. Sec. 701.38-701.40 [Reserved]
Sec. 701.41 Cost-share assistance not subject to claims.
Any cost-share assistance or portion thereof due any participant
under this part shall be allowed without regard to questions of title
under State law, and without regard to any claim or lien against any
crop or property, or proceeds thereof, except liens and other claims of
the United States or its instrumentalities. The regulations governing
offsets and withholdings at parts 792 and 1403 of this title shall be
applicable to this program and the provisions most favorable to a
collection of the debt shall control.
Sec. 701.42 Assignments.
Participants may assign ECP cost-share assistance payments, in whole
or in part, according to part 1404 of this title.
[[Page 13]]
Sec. 701.43 Information collection requirements.
Information collection requirements contained in this part have been
approved by the Office of Management and Budget under the provisions at
44 U.S.C. Chapter 35 and have been assigned OMB Number 0560-0082.
Sec. 701.44 Agricultural Conservation Program (ACP) contracts.
Contracts for ACP that are, or were, administered under this part or
similar contracts executed in connection with the Interim Environmental
Quality Incentives Program, shall, unless the Deputy Administrator
determines otherwise, be administered under, and be subject to, the
regulations for ACP contracts and the ACP program that were contained in
the 7 CFR parts 700 to 899, edition revised as of January 1, 1998, and
under the terms of the agreements that were entered into with
participants.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.45 Forestry Incentives Program (FIP) contracts.
The regulations governing the FIP as of July 31, 2002, and contained
in the 7 CFR parts 700 to 899, edition revised as of January 1, 2002,
shall continue to apply to FIP contracts in effect as of that date,
except as provided in accord with a delegation of the administration of
that program and such delegation and actions taken thereunder shall
apply to any other FIP matters as may be at issue or in dispute.
[69 FR 10302, Mar. 4, 2004, as amended at 75 FR 70088, Nov. 17, 2010]
Subpart B_Emergency Conservation Program
Sec. Sec. 701.100-701.102 [Reserved]
Sec. 701.103 Scope.
(a) FSA will provide cost-share assistance to farmers and ranchers
to rehabilitate farmland damaged by wind erosion, floods, hurricanes, or
other natural disasters as determined by the Deputy Administrator, and
to carry out emergency water conservation measures during periods of
severe drought, subject to the availability of funds and only for areas,
natural disasters, and time periods approved by the Deputy
Administrator.
(b) The objective of the ECP is to make cost-share assistance
available to eligible participants on eligible land for certain
practices, to rehabilitate farmland damaged by floods, hurricanes, wind
erosion, or other natural disasters, and for the installation of water
conservation measures during periods of severe drought.
(c) Payments may also be made under this subpart for:
(1) Emergency water conservation or water enhancement measures
(including measures to assist confined livestock) during periods of
severe drought; and
(2) Floodplain easements for runoff and other emergency measures
that the Deputy Administrator determines is necessary to safeguard life
and property from floods, drought, and the products of erosion on any
watershed whenever fire, flood, or other natural occurrence is causing
or has caused, a sudden impairment of the watershed.
(d) Payments under this part are subject to the availability of
appropriated funds and any limitations that may otherwise be provided
for by Congress.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec. 701.104 Producer eligibility.
(a) To be eligible to participate in the ECP the Deputy
Administrator must determine that a person or legal entity is an
agricultural producer with an interest in the land affected by the
natural disaster, and that person or legal entity must be liable for or
have paid the expense that is the subject of the cost share. The
applicant must be a landowner or user in the area where the qualifying
event has occurred, and must be a party who will incur the expense that
is the subject of the cost share.
(b) Federal agencies and States, including all agencies and
political subdivisions of a State, are ineligible to participate in the
ECP.
[[Page 14]]
(c) All producer eligibility is subject to the availability of funds
and an application may be denied for any reason.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec. 701.105 Land eligibility.
(a) For land to be eligible, the Deputy Administrator must determine
that land that is the subject of the cost share:
(1) Will have new conservation problems caused as a result of a
natural disaster that, if not treated, would:
(i) Impair or endanger the land;
(ii) Materially affect the productive capacity of the land;
(iii) Represent unusual damage that, except for wind erosion, is not
of the type likely to recur frequently in the same area; and
(iv) Be so costly to repair that Federal assistance is or will be
required to return the land to productive agricultural use. Conservation
problems existing prior to the disaster are not eligible for cost-share
assistance.
(2) Be physically located in a county in which the ECP has been
implemented; and
(3) Be one of the following:
(i) Land expected to have annual agricultural production,
(ii) A field windbreak or a farmstead shelterbelt on which the ECP
practice to be implemented involves removing debris that interferes with
normal farming operations on the farm and correcting damage caused by
the disaster; or
(iii) A farm access road on which debris interfering with the normal
farming operation needs to be removed.
(b) Land is ineligible for cost share if the Deputy Administrator
determines that it is, as applicable:
(1) Owned or controlled by the United States;
(2) Owned or controlled by States, including State agencies or other
political subdivisions of a State;
(3) Protected by a levee or dike that was not effectively and
properly functioning prior to the disaster, or is protected, or intended
to be protected, by a levee or dike not built to U.S. Army Corps of
Engineers, NRCS, or comparable standards;
(4) Adjacent to water impoundment reservoirs that are subject to
inundation when the reservoir is filled to capacity;
(5) Land on which levees or dikes are located;
(6) Subject to frequent damage or susceptible to severe damage
according to paragraph (c) of this section;
(7) Subject to flowage or flood easements and inundation when water
is released in normal operations;
(8) Between any levee or dike and a stream, river, or body of water,
including land between two or more levees or dikes;
(9) Located in an old or new channel of a stream, creek, river or
other similar body of water, except that land located within or on the
banks of an irrigation canal may be eligible if the Deputy Administrator
determines that the canal is not a channel subject to flooding;
(10) In greenhouses or other confined areas, including but not
limited to, land in corrals, milking parlors, barn lots, or feeding
areas;
(11) Land on which poor farming practices, such as failure to farm
on the contour, have materially contributed to damaging the land;
(12) Unless otherwise provided for, not considered to be in annual
agricultural production, such as land devoted to stream banks, channels,
levees, dikes, native woodland areas, roads, and recreational uses; or
(13) Devoted to trees including, but not limited to, timber
production.
(c) To determine the likely frequency of damage and of the
susceptibility of the land to severe damage under paragraph (b)(6) of
this section, FSA will consider all relevant factors, including, but not
limited to, the location of the land, the history of damage to the land,
and whether the land was or could have been protected by a functioning
levee or dike built to U. S. Army Corps of Engineers, NRCS, or
comparable standards. Further, in making such determinations,
information may be obtained and used from the Federal Emergency
Management Agency or any other Federal, State (including State agencies
or political subdivisions), or other entity or individual providing
information regarding, for
[[Page 15]]
example, flood susceptibility for the land, soil surveys, aerial
photographs, or flood plain data or other relevant information.
[69 FR 10302, Mar. 4, 2004. Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec. Sec. 701.106-701.109 [Reserved]
Sec. 701.110 Qualifying minimum cost of restoration.
(a) To qualify for assistance under Sec. 701.103(a), the eligible
damage must be so costly that Federal assistance is or will be required
to return the land to productive agricultural use or to provide
emergency water for livestock.
(b) The Deputy Administrator shall establish the minimum qualifying
cost of restoration. Each affected State may be allowed to establish a
higher minimum qualifying cost of restoration.
(c) A producer may request a waiver of the qualifying minimum cost
of restoration. The waiver request shall document how failure to grant
the waiver will result in environmental damage or hardship to the
producer and how the waiver will accomplish the goals of the program.
[69 FR 10302, Mar. 4, 2004; 69 FR 22377, Apr. 26, 2004. Redesignated and
amended at 75 FR 70088, Nov. 17, 2010]
Sec. 701.111 Prohibition on duplicate payments.
(a) Duplicate payments. Participants are not eligible to receive
funding under the ECP for land on which the participant has or will
receive funding under:
(1) The Wetland Reserve Program (WRP) provided for in 7 CFR part
1467;
(2) The Emergency Wetland Reserve Program (EWRP) provided for in 7
CFR part 623;
(3) The Emergency Watershed Protection Program (EWP), provided for
in 7 CFR part 624, for the same or similar expenses.
(4) Any other program that covers the same or similar expenses so as
to create duplicate payments, or, in effect, a higher rate of cost share
than is allowed under this part.
(b) Refund. Participants who receive any duplicate funds, payments,
or benefits shall refund any ECP payments received.
[69 FR 10302, Mar. 4, 2004, as amended at 71 FR 30265, May 26, 2006.
Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec. 701.112 Eligible ECP practices.
(a) Cost-share assistance may be offered for ECP practices to
replace or restore farmland, fences, or conservation structures to a
condition similar to that existing before the natural disaster. No
relief under this subpart shall be allowed to address conservation
problems existing before the disaster.
(b) The practice or practices made available when the ECP is
implemented shall be only those practices authorized by FSA for which
cost-share assistance is essential to permit accomplishment of the
program goals.
(c) Cost-share assistance may be provided for permanent vegetative
cover, including establishment of the cover where needed, only in
conjunction with eligible structures or installations where cover is
needed to prevent erosion and/or siltation or to accomplish some other
ECP purpose.
(d) Practice specifications shall represent the minimum levels of
performance needed to address the ECP need.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec. Sec. 701.113-701.116 [Reserved]
Sec. 701.117 Average adjusted gross income limitation.
To be eligible for payments issued from the $16 million provided
under the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and
Iraq Accountability Appropriations Act, 2007 (Pub. L. 110-28, section
9003), each applicant must meet the provisions of the Adjusted Gross
Income Limitations at 7 CFR part 1400 subpart G.
[72 FR 45880, Aug. 16, 2007. Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec. Sec. 701.118-701.125 [Reserved]
Sec. 701.126 Maximum cost-share percentage.
(a) In addition to other restrictions that may be applied by FSA, an
ECP participant shall not receive more than
[[Page 16]]
75 percent of the lesser of the participant's total actual cost or of
the total allowable costs, as determined by this part, to perform the
practice.
(b) However, notwithstanding paragraph (a) of this section, a
qualified limited resource producer that participates in the ECP may
receive no more than 90 percent of the participant's actual cost to
perform the practice or 90 percent of the total allowable costs for the
practice as determined under this part.
(c) In addition to other limitations that apply, in no case shall
the ECP payment exceed 50 percent of what the Deputy Administrator has
determined is the agricultural value of the affected land.
[69 FR 10302, Mar. 4, 2004. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec. 701.127 Maximum ECP payments per person or legal entity.
A person or legal entity, as defined in part 1400 of this title, is
limited to a maximum ECP cost-share of $200,000 per person or legal
entity, per natural disaster.
[75 FR 7088, Nov. 17, 2010]
Sec. Sec. 701.128-701.149 [Reserved]
Sec. 701.150 2005 hurricanes.
In addition benefits elsewhere allowed by this part, claims related
to calendar year 2005 hurricane losses may be allowed to the extent
provided for in Sec. Sec. 701.150 through 701.157. Such claims under
those sections will be limited to losses in counties that were declared
disaster counties by the President or the Secretary because of 2005
hurricanes and to losses to oyster reefs. Claims under Sec. Sec.
701.151 through 701.157 shall be subject to all normal ECP limitations
and provisions except as explicitly provided in those sections.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
Sec. 701.151 Definitions.
The following definitions apply to Sec. Sec. 701.152 through
701.157:
Above-ground irrigation facilities means irrigation pipes,
sprinklers, pumps, emitters, and any other integral part of the above
ground irrigation system.
Barn means a structure used for the housing of animals or farm
equipment.
Commercial forest land means forest land with trees intended to be
harvested for commercial purposes that has a productivity potential
greater than or equal to 20 cubic feet per year of merchantable timber.
Date of loss means the date the hurricane damage occurred in
calendar year 2005.
Eligible county means any county that was declared a disaster county
by the President or the Secretary because of a calendar year 2005
hurricane, that otherwise meets the eligibility requirements of this
part.
Forest management plan means a plan of action and direction on
forest lands to achieve a set of results usually specified as goals or
objectives consistent with program policies prepared or approved by a
natural resource professional, such as a State forestry agency
representative.
Poultry house means a building used to house live poultry for the
purpose of commercial food production.
Private non-industrial forest land means rural commercial forest
lands with existing tree cover, or which are suitable for growing trees,
that are owned by a private non-industrial forest landowner as defined
in this section.
Private non-industrial forest landowner means, for purposes of the
ECP for forestry, an individual, group, association, corporation, Indian
tribe, or other legal private entity owning non-industrial private
forest land or who receives concurrence from the landowner for making
the claim in lieu of the owner, and for practice implementation and who
holds a lease on the land for a minimum of 10 years. Owners or lessees
principally engaged in the primary processing of raw wood products are
excluded from this definition. Owners of land leased to lessees who
would be excluded under the previous sentence are also excluded.
Shade house means a metal or wood structure covered by a material
used for shade purposes.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
[[Page 17]]
Sec. 701.152 Availability of funding.
Payments under Sec. Sec. 1701.53 through 701.157 are subject to the
availability of funds under Public Law 109-148.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
Nov. 17, 2010]
Sec. 701.153 Debris removal and water for livestock.
Subject to the other eligibility provisions of this part, an ECP
participant addressing damage in an eligible county from hurricanes
during calendar year 2005 may be allowed up to 90 percent of the
participant's actual cost or of the total allowable cost for cleaning up
structures such as barns, shade houses and above-ground irrigation
facilities, for removing poultry house debris, including carcasses, and
for providing water for livestock.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
Sec. 701.154 [Reserved]
Sec. 701.155 Nursery.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance may be made available
in an eligible county under this section for the cost of removing
nursery debris such as nursery structures, shade houses, and above
ground irrigation facilities, where such debris was created in calendar
year 2005 by a 2005 hurricane.
(b) Notwithstanding Sec. 701.126, an otherwise eligible ECP
participant may be allowed up to 90 percent of the participant's actual
cost or of the total allowable cost for losses described in paragraph
(a) of this section.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
Sec. 701.156 Poultry.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance may be allowed under
this section for uninsured losses in calendar year 2005 to a poultry
house in an eligible county due to a 2005 hurricane.
(b) Claimants under this section may be allowed an amount up to the
lesser of:
(1) The lesser of 50 percent of the participant's actual or the
total allowable cost of the reconstruction or repair of a poultry house,
or
(2) $50,000 per poultry house.
(c) The total amount of assistance provided under this section and
any indemnities for losses to a poultry house paid to a poultry grower,
may not exceed 90 percent of the total costs associated with the
reconstruction or repair of a poultry house.
(d) Poultry growers must provide information on insurance payments
on their poultry houses. Copies of contracts between growers and poultry
integrators may be required.
(e) Assistance under this section is limited to amounts necessary
for reconstruction and/or repair of a poultry house to the same size as
before the hurricane.
(f) Assistance is limited to poultry houses used to house poultry
for commercial enterprises. A commercial poultry enterprise is one with
a dedicated structure for poultry and a number of poultry that exceeds
actual non-commercial uses of poultry and their products at all times,
and from which poultry or related products are actually, and routinely,
sold in commercial quantities for food, fiber, or eggs. Unless otherwise
approved by FSA, a commercial quantity is a quantity per week that would
normally exceed $100 in sales.
(g) Poultry houses with respect to which claims are made under this
section must be reconstructed or repaired to meet current building
standards.
[71 FR 30265, May 26, 2006. Redesignated at 75 FR 70088, Nov. 17, 2010]
Sec. 701.157 Private non-industrial forest land.
(a) Subject to the other eligibility provisions of this part except
as provided explicitly in this section, assistance made available under
this section with respect to private, non-industrial forest land in an
eligible county for costs related to reforestations, rehabilitation, and
related measures undertaken because of losses in calendar year 2005
caused by a 2005 hurricane. To be eligible, a non-industrial private
forest landowner must have suffered a
[[Page 18]]
loss of, or damage to, at least 35 percent of forest acres on commercial
forest land of the forest landowner in a designated disaster county due
to a 2005 hurricane or related condition. The 35 percent loss shall be
determined based on the value of the land before and after the hurricane
event.
(b) During the 5-year period beginning on the date of the loss, the
eligible private non-industrial forest landowner must:
(1) Reforest the eligible damaged forest acres in accordance with a
forest management plan approved by FSA that is appropriate for the
forest type where the forest management plan is developed by a person or
legal entity with appropriate forestry credentials, as determined by the
Deputy Administrator;
(2) Use the best management practices included in the forest
management plan; and
(3) Exercise good stewardship on the forest land of the landowner
while maintaining the land in a forested state.
(c) Notwithstanding Sec. 701.126, an ECP participant shall not
receive under this section more than 75 percent of the participant's
actual cost or of the total allowable cost of reforestation,
rehabilitation, and related measures.
(d) Payments under this section shall not exceed a maximum of $150
per acre for any acre.
(e) Requests will be prioritized based upon planting tree species
best suited to the site as stated in the forest management plan.
[71 FR 30265, May 26, 2006. Redesignated and amended at 75 FR 70088,
70089, Nov. 17, 2010]
Subpart C_Emergency Forest Restoration Program
Source: 75 FR 70889, Nov. 17, 2010, unless otherwise noted.
Sec. Sec. 701.200-701.202 [Reserved]
Sec. 701.203 Scope.
(a) Subject to the availability of funds and only for areas, natural
disasters, and time periods for the natural disaster and rehabilitation
approved by the Deputy Administrator, FSA will provide financial
assistance to owners of nonindustrial private forest land who carry out
emergency measures to restore land damaged by a natural disaster on or
after January 1, 2010, as determined by FSA.
(b) The objective of EFRP is to make financial assistance available
to eligible participants on eligible land for certain practices to
restore nonindustrial private forest land that has been damaged by a
natural disaster.
Sec. 701.204 Participant eligibility.
(a) To be eligible to participate in EFRP, a person or legal entity
must be an owner of nonindustrial private forest land affected by a
natural disaster, and must be liable for or have the expense that is the
subject of the financial assistance. The owner must be a person or legal
entity (including an Indian tribe) with full decision-making authority
over the land, as determined by FSA, or with such waivers as may be
needed from lenders or others as may be required, to undertake program
commitments.
(b) Federal agencies and States, including all agencies and
political subdivisions of a State, are ineligible for EFRP.
(c) An application may be denied for any reason.
Sec. 701.205 Land eligibility.
(a) For land to be eligible, it must be nonindustrial private forest
land and must, as determined by FSA:
(1) Have existing tree cover or have had tree cover immediately
before the natural disaster and be suitable for growing trees;
(2) Have damage to natural resources caused by a natural disaster,
which occurred on or after January 1, 2010, that, if not treated, would
impair or endanger the natural resources on the land and would
materially affect future use of the land; and
(3) Be physically located in a county in which EFRP has been
implemented.
(b) Land is ineligible for EFRP if FSA determines that the land is
any of the following:
(1) Owned or controlled by the United States; or
(2) Owned or controlled by States, including State agencies or
political subdivisions of a State.
[[Page 19]]
Sec. Sec. 701.206-701.209 [Reserved]
Sec. 701.210 Qualifying minimum cost of restoration.
(a) FSA will establish the minimum qualifying cost of restoration,
which may vary by State or region.
(b) An applicant may request a waiver of the qualifying minimum cost
of restoration. The waiver request must document how failure to grant
the waiver will result in environmental damage or hardship to the person
or legal entity, and how the waiver will accomplish the goals of the
program.
Sec. 701.211 Prohibition on duplicate payments.
(a) Participants are not eligible to receive funding under EFRP for
land on which FSA determines that the participant has or will receive
funding for the same or similar expenses under:
(1) The Emergency Conservation Program provided for in subpart B of
this part;
(2) The Wetland Reserve Program (WRP) provided for in part 1467 of
this title;
(3) The Emergency Wetland Reserve Program (EWRP) provided for in
part 623 of this chapter;
(4) The Emergency Watershed Protection Program (EWP), provided for
in part 624 of this chapter; or
(5) Any other program that covers the same or similar expenses so as
to create duplicate payments, or, have the effect of creating in total,
otherwise, a higher rate of financial assistance than is allowed on its
own under this part.
(b) Participants who receive any duplicate funds, payments, or
benefits must refund any EFRP payments received, except the Deputy
Administrator may reduce the refund amount to the amount determined
appropriate by the Deputy Administrator to ensure that the total amount
of assistance received by the owner of the land under all programs does
not exceed an amount otherwise allowed in this part.
Sec. 701.212 Eligible EFRP practices.
(a) Financial assistance may be offered to eligible persons or legal
entities for EFRP practices to restore forest health and forest-related
resources on eligible land.
(b) Practice specifications must represent the minimum level of
performance needed to restore the land to the applicable FSA, NRCS,
Forest Service, or State forestry standard.
Sec. Sec. 701.213-701.225 [Reserved]
Sec. 701.226 Maximum financial assistance.
(a) In addition to other restrictions that may be applied by FSA, an
EFRP participant will not receive more than 75 percent of the lesser of
the participant's total actual cost or of the total allowable costs, as
determined by this subpart, to perform the practice.
(b) A person, as defined in part 1400 of this title, is limited to a
maximum cost-share of $500,000 per person or legal entity, per disaster.
(c) The Deputy Administrator may waive the provisions of this
section on a case by case basis to address unusually large losses. Such
relief is solely at the discretion of the Deputy Administrator, and the
failure to provide such relief is not subject to administrative review
or appeal under parts 11 or 780 of this title.
PART 707_PAYMENTS DUE PERSONS WHO HAVE DIED, DISAPPEARED, OR HAVE
BEEN DECLARED INCOMPETENT--Table of Contents
Sec.
707.1 Applicability.
707.2 Definitions.
707.3 Death.
707.4 Disappearance.
707.5 Incompetency.
707.6 Death, disappearance, or incompetency of one eligible to apply for
payment pursuant to the regulations in this part.
707.7 Release application.
Authority: 7 U.S.C. 1385 and 8786.
Source: 30 FR 6246, May 5, 1965, unless otherwise noted.
Sec. 707.1 Applicability.
This part applies to all programs in title 7 of the Code of Federal
Regulations which are administered by the Farm Service Agency under
which payments are made to eligible program participants. This part also
applies to all other programs to which this part is
[[Page 20]]
applicable by the individual program regulations.
Sec. 707.2 Definitions.
``Person'' when relating to one who dies, disappears, or becomes
incompetent, prior to receiving payment, means a person who has earned a
payment in whole or in part pursuant to any of the programs to which
this part is applicable. ``Children'' shall include legally adopted
children who shall be entitled to share in any payment in the same
manner and to the same extent as legitimate children of natural parents.
``Brother'' or ``sister'', when relating to one who, pursuant to the
regulations in this part, is eligible to apply for the payment which is
due a person who dies, disappears, or becomes incompetent prior to the
receipt of such payment, shall include brothers and sisters of the half
blood who shall be considered the same as brothers and sisters of the
whole blood. ``Payment'' means a payment by draft, check or certificate
pursuant to any of the Programs to which this part is applicable.
Payments shall not be considered received for the purposes of this part
until such draft, check or certificate has been negotiated or used.
Sec. 707.3 Death.
(a) Where any person who would otherwise be eligible to receive a
payment dies before the payment is received, payment may be released in
accordance with this section so long as, and only if, a timely program
application has been filed by the deceased before the death or filed in
a timely way before or after the death by a person legally authorized to
act for the deceased. Timeliness will be determined under the relevant
program regulations. All program conditions for payment under the
relevant program regulations must have been met for the deceased to be
considered otherwise eligible for the payment. However, the payment will
not be made under this section unless, in addition, a separate release
application is filed in accordance with Sec. 707.7. If these conditions
are met, payment may be released without regard to the claims of
creditors other than the United States, in accordance with the following
order of precedence:
(1) To the administrator or executor of the deceased person's
estate.
(2) To the surviving spouse, if there is no administrator or
executor and none is expected to be appointed, or if an administrator or
executor was appointed but the administration of the estate is closed
(i) prior to application by the administrator or executor for such
payment or (ii) prior to the time when a check, draft, or certificate
issued for such payment to the administrator or executor is negotiated
or used.
(3) If there is no surviving spouse, to the sons and daughters in
equal shares. Children of a deceased son or daughter of a deceased
person shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of a
deceased son or daughter of such deceased person, the share of the
payment which otherwise would have been made to such son or daughter
shall be divided equally among the surviving sons and daughters of such
deceased person and the estates of any deceased sons or daughters where
there are surviving direct descendants.
(4) If there is no surviving spouse and no direct descendant,
payment shall be made to the father and mother of the deceased person in
equal shares, or the whole thereof to the surviving father or mother.
(5) If there is no surviving spouse, no direct descendant, and no
surviving parent, payment shall be made to the brothers and sisters of
the deceased person in equal shares. Children of a deceased brother or
sister shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of the
deceased brother or sister of such deceased person, the share of the
payment which otherwise would have been made to such brother or sister
shall be divided equally among the surviving brothers and sisters of
such deceased person and the estates of any deceased brothers or sisters
where there are surviving direct descendants.
(6) If there is no surviving spouse, direct descendant, parent, or
brothers or sisters or their descendants, the payment shall be made to
the heirs-at-law in accordance with the law of the State of domicile of
the deceased person.
[[Page 21]]
(b) If any person who is entitled to payment under the above order
of precedence is a minor, payment of his share shall be made to his
legal guardian, but if no legal guardian has been appointed payment
shall be made to his natural guardian or custodian for his benefit,
unless the minor's share of the payment exceeds $1,000, in which event
payment shall be made only to his legal guardian.
(c) Any payment which the deceased person could have received may be
made jointly to the persons found to be entitled to such payment or
shares thereof under this section or, pursuant to instructions issued by
the Farm Service Agency, a separate payment may be issued to each person
entitled to share in such payment.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81835, Dec. 29, 2010]
Sec. 707.4 Disappearance.
(a) Where any person who would otherwise be eligible to receive a
payment disappears before the payment is received, payment may be
released in accordance with this section so long as, and only if, a
timely program application has been filed by that person before the
disappearance or filed timely before or after the disappearance by
someone legally authorized to act for the person involved. Timeliness
will be determined under the relevant program regulations. All program
conditions for payment under the relevant program regulations must have
been met for the person involved to be considered otherwise eligible for
the payment. However, the payment will not be made unless, in addition,
a separate release application is filed in accordance with Sec. 707.7.
If these conditions are met, payment may be released without regard to
the claims of creditors other than the United States, in accordance with
the following order of precedence:
(1) The conservator or liquidator of his estate, if one be duly
appointed.
(2) The spouse.
(3) An adult son or daughter or grandchild for the benefit of his
estate.
(4) The mother or father for the benefit of his estate.
(5) An adult brother or sister for the benefit of his estate.
(6) Such person as may be authorized under State law to receive
payment for the benefit of his estate.
(b) A person shall be deemed to have disappeared if (1) he has been
missing for a period of more than 3 months, (2) a diligent search has
failed to reveal his whereabouts, and (3) such person has not
communicated during such period with other persons who would be expected
to have heard from him. Evidence of such disappearance must be presented
to the county committee in the form of a statement executed by the
person making the application for payment, setting forth the above
facts, and must be substantiated by a statement from a disinterested
person who was well acquainted with the person who has disappeared.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81835, Dec. 29, 2010]
Sec. 707.5 Incompetency.
(a) Where any person who would otherwise be eligible to receive a
payment is adjudged incompetent by a court of competent jurisdiction
before the payment is received, payment may be released in accordance
with this section so long as, and only if, a timely and binding program
application has been filed by the person involved while capable or by
someone legally authorized to file an application for the person
involved. Timeliness is determined under the relevant program
regulations. In all cases, the payment application must have been timely
under the relevant program regulations and all program conditions for
payment must have been met by or on behalf of the person involved.
However, the payment will not be made unless, in addition, a separate
release application is filed in accordance with Sec. 707.7. If these
conditions are met, payment may be released without regard to the claims
of creditors other than the United States, to the guardian or committee
legally appointed for the person involved. In case no guardian or
committee had been appointed, payment, if for not more than $1,000, may
be released without regard to claims of creditors other than the United
States, to one of the following in the following order for the benefit
of the person who was the subject of the adjudication:
[[Page 22]]
(1) The spouse.
(2) An adult son, daughter, or grandchild.
(3) The mother or father.
(4) An adult brother or sister.
(5) Such person as may be authorized under State law to receive
payment for the person (see standard procedure prescribed for the
respective region).
(b) In case payment is more than $1,000, payment may be released
only to such person as may be authorized under State law to receive
payment for the incompetent, so long as all conditions for other
payments specified in paragraph (a) of this section and elsewhere in the
applicable regulations have been met. Those requirements include the
filing of a proper and timely and legally authorized program application
by or for the person adjudged incompetent. The release of funds under
this paragraph will be made without regard to claims of creditors other
than the United States unless the agency determines otherwise.
[75 FR 81836, Dec. 30, 2010]
Sec. 707.6 Death, disappearance, or incompetency of one eligible
to apply for payment pursuant to the regulations in this part.
In case any person entitled to apply for a release of a payment
pursuant to the provisions of Sec. 707.3, Sec. 707.4, Sec. 707.5, or
this section, dies, disappears, or is adjudged incompetent, as the case
may be, after he has applied for such payment but before the payment is
received, payment may be made upon proper application therefor, without
regard to claims of creditors other than the United States, to the
person next entitled thereto in accordance with the order of precedence
set forth in Sec. 707.3, Sec. 707.4, or Sec. 707.5, as the case may
be.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81836, Dec. 29, 2010]
Sec. 707.7 Release application.
No payment may be made under this part unless a proper program
application was filed in accordance with the rules for the program that
generated the payment. That application must have been timely and filed
by someone legally authorized to act for the deceased, disappeared, or
declared-incompetent person. The filer can be the party that earned the
payment themselves--such as the case of a person who filed a program
application before they died--or someone legally authorized to act for
the party that earned the payment. All program conditions for payment
must have been met before the death, disappearance, or incompetency
except for the timely filing of the application for payment by the
person legally authorized to act for the party earning the payment. But,
further, for the payment to be released under the rules of this part, a
second application must be filed. That second application is a release
application filed under this section. In particular, as to the latter,
where all other conditions have been met, persons desiring to claim
payment for themselves or an estate in accordance with this part 707
must do so by filing a release application on Form FSA-325,
``Application for Payment of Amounts Due Persons Who Have Died,
Disappeared or Have Been Declared Incompetent.If the person who died,
disappeared, or was declared incompetent did not apply for payment by
filing the applicable program application for payment form, such program
application for payment must also be filed in accordance with applicable
regulations. If the payment is made under the Naval Stores Conservation
Program, Part II of the Form FSA-325 shall be executed by the local
District Supervisor of the U.S. Forest Service. In connection with
applications for payment under all other programs itemized in Sec.
707.1, Form FSA-325, and program applications for payments where
required, shall be filed with the FSA county office where the person who
earned the payment would have been required to file his application.
[30 FR 6246, May 5, 1965, as amended at 75 FR 81836, Dec. 29, 2010]
PART 708_RECORD RETENTION REQUIREMENTS_ALL PROGRAMS--Table of Contents
Authority: Sec. 4, 49 Stat. 164, secs. 7-17, 49 Stat. 1148, as
amended; 16 U.S.C. 590d, 590g-590q.
[[Page 23]]
Sec. 708.1 Record retention period.
For the purposes of the programs in this chapter, no receipt,
invoice, or other record required to be retained by any agricultural
producer as evidence tending to show performance of a practice under any
such program needs to be retained by such producer more than two years
following the close of the program year of the program.
[25 FR 105, Jan. 7, 1960. Redesignated at 26 FR 5788, June 29, 1961]
[[Page 24]]
SUBCHAPTER B_FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
PART 714_REFUNDS OF PENALTIES ERRONEOUSLY, ILLEGALLY, OR WRONGFULLY
COLLECTED--Table of Contents
Sec.
714.35 Basis, purpose, and applicability.
714.36 Definitions.
714.37 Instructions and forms.
714.38 Who may claim refund.
714.39 Manner of filing.
714.40 Time of filing.
714.41 Statement of claim.
714.42 Designation of trustee.
714.43 Recommendation by county committee.
714.44 Recommendation by State committee.
714.45 Approval by Deputy Administrator.
714.46 Certification for payment.
Authority: Secs. 372, 375, 52 Stat. 65, as amended, 66, as amended;
7 U.S.C. 1372, 1375.
Source: 35 FR 12098, July 29, 1970, unless otherwise noted.
Sec. 714.35 Basis, purpose, and applicability.
(a) Basis and purpose. The regulations set forth in this part are
issued pursuant to the Agricultural Adjustment Act of 1938, as amended,
for the purpose of prescribing the provisions governing refunds of
marketing quota penalties erroneously, illegally, or wrongfully
collected with respect to all commodities subject to marketing quotas
under the Act.
(b) Applicability. This part shall apply to claims submitted for
refunds of marketing quota penalties erroneously, illegally, or
wrongfully collected on all commodities subject to marketing quotas
under the Act. It shall not apply to the refund of penalties which are
deposited in a special deposit account pursuant to sections 314(b),
346(b), 356(b), or 359 of the Agricultural Adjustment Act of 1938, as
amended, or paragraph (3) of Pub. L. 74, 77th Congress, available for
the refund of penalties initially collected which are subsequently
adjusted downward by action of the county committee, review committee,
or appropriate court, until such penalties have been deposited in the
general fund of the Treasury of the United States after determination
that no downward adjustment in the amount of penalty is warranted. All
prior regulations dealing with refunds of penalties which were contained
in this part are superseded upon the effective date of the regulations
in this part.
Sec. 714.36 Definitions.
(a) General terms. In determining the meaning of the provisions of
this part, unless the context indicates otherwise, words imparting the
singular include and apply to several persons or things, words imparting
the plural include the singular, words imparting the masculine gender
include the feminine as well, and words used in the present tense
include the future as well as the present. The definitions in part 719
of this chapter shall apply to this part. The provisions of part 720 of
this chapter concerning the expiration of time limitations shall apply
to this part.
(b) Other terms applicable to this part. The following terms shall
have the following meanings:
(1) ``Act'' means the Agricultural Adjustment Act of 1938, and any
amendments or supplements thereto.
(2) ``Claim'' means a written request for refund of penalty.
(3) ``Claimant'' means a person who makes a claim for refund of
penalty as provided in this part.
(4) ``County Office'' means the office of the Agricultural
Stabilization and Conservation County Committee.
(5) ``Penalty'' means an amount of money collected, including
setoff, from or on account of any person with respect to any commodity
to which this part is applicable, which has been covered into the
general fund of the Treasury of the United States, as provided in
section 372(b) of the Act.
(6) ``State office'' means the office of the Agricultural
Stabilization and Conservation State Committee.
Sec. 714.37 Instructions and forms.
The Deputy Administrator shall cause to be prepared and issued such
[[Page 25]]
instructions and forms as are necessary for carrying out the regulations
in the part.
Sec. 714.38 Who may claim refund.
Claim for refund may be made by:
(a) Any person who was entitled to share in the price or
consideration received by the producer with respect to the marketing of
a commodity from which a deduction was made for the penalty and bore the
burden of such deduction in whole or in part.
(b) Any person who was entitled to share in the commodity or the
proceeds thereof, paid the penalty thereon in whole or in part and has
not been reimbursed therefor.
(c) Any person who was entitled to share in the commodity or the
proceeds thereof and bore the burden of the penalty because he has
reimbursed the person who paid such penalty.
(d) Any person who, as buyer, paid the penalty in whole or in part
in connection with the purchase of a commodity, was not required to
collect or pay such penalty, did not deduct the amount of such penalty
from the price paid the producer, and has not been reimbursed therefor.
(e) Any person who paid the penalty in whole or in part as a surety
on a bond given to secure the payment of penalties and has not been
reimbursed therefor.
(f) Any person who paid the whole or any part of the sum paid as a
penalty with respect to a commodity included in a transaction which in
fact was not a marketing of such commodity and has not been reimbursed
therefor.
Sec. 714.39 Manner of filing.
Claim for refund shall be filed in the county office on a form
prescribed by the Deputy Administrator. If more than one person is
entitled to file a claim, a joint claim may be filed by all such
persons. If a separate claim is filed by a person who is a party to a
joint claim, such separate claim shall not be approved until the
interest of each person involved in the joint claim has been determined.
Sec. 714.40 Time of filing.
Claim shall be filed within 2 years after the date payment was made
to the Secretary. The date payment was made shall be deemed to be the
date such payment was deposited in the general fund of the Treasury as
shown on the certificate of deposit on which such payment was scheduled.
Sec. 714.41 Statement of claim.
The claim shall show fully the facts constituting the basis of the
claim; the name and address of and the amount claimed by every person
who bore or bears any part or all of the burden of such penalty; and the
reasons why such penalty is claimed to have been erroneously, illegally,
or wrongfully collected. It shall be the responsibility of the county
committee to determine that any person who executes a claim as agent or
fiduciary is properly authorized to act in such capacity. There should
be attached to the claim all pertinent documents with respect to the
claim or duly authenticated copies thereof.
Sec. 714.42 Designation of trustee.
Where there is more than one claimant and all the claimants desire
to appoint a trustee to receive and disburse any payment to be made to
them with respect to the claim, they shall be permitted to appoint a
trustee. The person designated as trustee shall execute the declaration
of trust.
Sec. 714.43 Recommendation by county committee.
Immediately upon receipt of a claim, the date of receipt shall be
recorded on the face thereof. The county committee shall determine, on
the basis of all available information, if the data and representations
on the claim are correct. The county committee shall recommend approval
or disapproval of the claim, and attach a statement to the claim, signed
by a member of the committee, giving the reasons for their action. After
the recommendation of approval or disapproval is made by the county
committee, the claim shall be promptly sent to the State committee.
Sec. 714.44 Recommendation by State committee.
A representative of the State committee shall review each claim
referred by the county committee. If a claim is
[[Page 26]]
sent initially to the State committee, it shall be referred to the
appropriate county committee for recommendation as provided in Sec.
714.43 prior to action being taken by the State committee. Any necessary
investigation shall be made. The State committee shall recommend
approval or disapproval of the claim, attaching a statement giving the
reasons for their action, which shall be signed by a representative of
the State committee. After recommending approval or disapproval, the
claim shall be promptly sent to the Deputy Administrator.
Sec. 714.45 Approval by Deputy Administrator.
The Deputy Administrator shall review each claim forwarded to him by
the State committee to determine whether, (a) the penalty was
erroneously, illegally, or wrongfully collected, (b) the claimant bore
the burden of the payment of the penalty, (c) the claim was timely
filed, and (d) under the applicable law and regulations the claimant is
entitled to a refund. If a claim is filed initially with the Deputy
Administrator, he shall obtain the recommendations of the county
committee and the State committee if he deems such action necessary in
arriving at a proper determination of the claim. The claimant shall be
advised in writing of the action taken by the Deputy Administrator. If
disapproved, the claimant shall be notified with an explanation of the
reasons for such disapproval.
Sec. 714.46 Certification for payment.
An officer or employee of the Department of Agriculture authorized
to certify public vouchers for payment shall, for and on behalf of the
Secretary of Agriculture, certify to the Secretary of the Treasury of
the United States for payment all claims for refund which have been
approved.
PART 718_PROVISIONS APPLICABLE TO MULTIPLE PROGRAMS--Table of Contents
Subpart A_General Provisions
Sec.
718.1 Applicability.
718.2 Definitions.
718.3 State committee responsibilities.
718.4 Authority for farm entry and providing information.
718.5 Rule of fractions.
718.6 Controlled substance.
718.7 Furnishing maps.
718.8 Administrative county.
718.9 Signature requirements.
718.10 Time limitations.
718.11 Disqualification due to federal crop insurance fraud.
Subpart B_Determination of Acreage and Compliance
718.101 Measurements.
718.102 Acreage reports.
718.103 Prevented planted and failed acreage.
718.104 Late-filed and revised acreage reports.
718.105 Tolerances, variances, and adjustments.
718.106 Non-compliance and false acreage reports.
718.107 Acreages.
718.108 Measuring acreage including skip row acreage
718.109 Deductions.
718.110 Adjustments.
718.111 Notice of measured acreage.
718.112 Redetermination.
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Base Acres
718.201 Farm constitution.
718.202 Determining the land constituting a farm.
718.203 County committee action to reconstitute a farm.
718.204 Reconstitution of base acres.
718.205 Substantive change in farming operation, and changes in related
legal entities.
718.206 Determining farms, tracts, and base acres when reconstitution is
made by division.
718.207 Determining base acres when reconstitution is made by
combination.
Subpart D_Equitable Relief From Ineligibility
718.301 Applicability.
718.302 Definitions and abbreviations.
718.303 Reliance on incorrect actions or information.
718.304 Failure to fully comply.
718.305 Forms of relief.
718.306 Finality.
718.307 Special relief approval authority for State Executive Directors.
Authority: 7 U.S.C. 1501-1524, 1921-2008r, 7201-7334, 7901-8002 and
9011-9097, 15 U.S.C. 714b and c, and 16 U.S.C. 3801-3847.
[[Page 27]]
Source: 61 FR 37552, July 18, 1996, unless otherwise noted.
Subpart A_General Provisions
Source: 68 FR 16172, Apr. 3, 2003, unless otherwise noted.
Sec. 718.1 Applicability.
(a) This part is applicable to all programs specified in chapters
VII and XIV of this title that are administered by the Farm Service
Agency (FSA) and to any other programs that adopt this part by
reference. This part governs how FSA administers marketing quotas,
allotments, base acres, and acreage reports for those programs to which
this part applies. The regulations to which this part applies are those
that establish procedures for measuring allotments and program eligible
acreage, for determining program compliance, farm reconstitutions,
application of finality, and equitable relief from compliance or
ineligibility.
(b) For all programs, except for those administered under parts 761
through 774 of this chapter:
(1) The provisions of this part will be administered under the
general supervision of the Administrator, FSA, and carried out in the
field by State and county FSA committees (State and county committees);
(2) State and county committees, and representatives and employees
thereof, do not have authority to modify or waive any regulations in
this part;
(3) No provisions or delegation herein to a State or county
committee will preclude the Administrator, FSA, or a designee, from
determining any question arising under the program or from reversing or
modifying any determination made by a State or county committee;
(4) The Deputy Administrator, FSA, may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
(c) The programs under parts 761 through 774 will be administered
according to the part, or parts, applicable to the specific program.
[72 FR 63284, Nov. 8, 2007, as amended at 80 FR 41994, July 16, 2015]
Sec. 718.2 Definitions.
Except as provided in individual parts of chapters VII and XIV of
this title, the following terms shall be as defined herein:
Administrative variance (AV) means the amount by which the
determined acreage of tobacco may exceed the effective allotment and be
considered in compliance with program regulations.
Allotment means an acreage for a commodity allocated to a farm in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Allotment crop means any tobacco crop for which acreage allotments
are established pursuant to part 723 of this chapter.
Barley means barley that follows the standard planting and
harvesting practice of barley for the area in which the barley is grown.
Base acres means, with respect to a covered commodity on a farm, the
number of acres in effect on September 30, 2013, as defined in the
regulations in part 1412, subpart B, of this title that were in effect
on that date, subject to any reallocation, adjustment, or reduction. The
term ``base acres'' includes any generic base acres as specified in part
1412 planted to a covered commodity as specified in part 1412.
Beginning farmer or rancher means a person or legal entity (for
legal entities to be considered a beginning farmer or rancher, all
members must be related by blood or marriage and all members must be
beginning farmers or ranchers) for which both of the following are true
for the farmer or rancher:
(1) Has not operated a farm or ranch for more than 10 years; and
(2) Materially and substantially participates in the operation.
CCC means the Commodity Credit Corporation.
Combination means consolidation of two or more farms or parts of
farms, having the same operator, into one farm.
Common land unit means the smallest unit of land that has an
identifiable
[[Page 28]]
border and all of the following in common:
(1) Owner;
(2) Management;
(3) Cover; and
(4) Where applicable, producer association.
Common ownership unit means a distinguishable parcel of land
consisting of one or more tracts of land with the same owners, as
determined by FSA.
Constitution means the make-up of the farm before any change is made
because of change in ownership or operation.
Contiguous means sharing any part of a boundary but not overlapping.
Contiguous county means a county contiguous to the reference county
or counties.
Contiguous county office means the FSA county office that is in a
contiguous county.
Controlled environment means, with respect to those crops for which
a controlled environment is required or expected to be provided,
including but not limited to ornamental nursery, aquaculture (including
ornamental fish), and floriculture, as applicable under the particular
program, an environment in which everything that can practicably be
controlled with structures, facilities, growing media (including but not
limited to water, soil, or nutrients) by the producer, is in fact
controlled by the producer.
Controlled substances means the term set forth in 21 CFR part 1308.
Corn means field corn or sterile high-sugar corn that follows the
standard planting and harvesting practices for corn for the area in
which the corn is grown. Popcorn, corn nuts, blue corn, sweet corn, and
corn varieties grown for decoration uses are not corn.
County means the county or parish of a state. For Alaska, Puerto
Rico and the Virgin Islands, a county shall be an area designated by the
State committee with the concurrence of the Deputy Administrator.
County committee means the FSA county committee.
Crop reporting date means the latest date upon which the
Administrator, FSA will allow the farm operator, owner, or their agent
to submit a crop acreage report in order for the report to be considered
timely.
Cropland. (a) Means land which the county committee determines meets
any of the following conditions:
(1) Is currently being tilled for the production of a crop for
harvest. Land which is seeded by drilling, broadcast or other no-till
planting practices shall be considered tilled for cropland definition
purposes;
(2) Is not currently tilled, but it can be established that such
land has been tilled in a prior year and is suitable for crop
production;
(3) Is currently devoted to a one-row or two-row shelter belt
planting, orchard, or vineyard;
(4) Is in terraces that, were cropped in the past, even though they
are no longer capable of being cropped;
(5) Is in sod waterways or filter strips planted to a perennial
cover;
(6) Is preserved as cropland in accordance with part 1410 of this
title; or
(7) Is land that has newly been broken out for purposes of being
planted to a crop that the producer intends to, and is capable of,
carrying through to harvest, using tillage and cultural practices that
are consistent with normal practices in the area; provided further that,
in the event that such practices are not utilized other than for reasons
beyond the producer's control, the cropland determination shall be void
retroactive to the time at which the land was broken out.
(b) Land classified as cropland shall be removed from such
classification upon a determination by the county committee that the
land is:
(1) No longer used for agricultural production;
(2) No longer suitable for production of crops;
(3) Subject to a restrictive easement or contract that prohibits its
use for the production of crops unless otherwise authorized by the
regulation of this chapter;
(4) No longer preserved as cropland in accordance with the
provisions of part 1410 of this title and does not meet the conditions
in paragraphs (a)(1) through (a)(6) of this definition; or
(5) Converted to ponds, tanks or trees other than those trees
planted in compliance with a Conservation Reserve
[[Page 29]]
Program contract executed pursuant to part 1410 of this title, or trees
that are used in one-or two-row shelterbelt plantings, or are part of an
orchard or vineyard.
Current year means the year for which allotments, quotas, acreages,
and bases, or other program determinations are established for that
program. For controlled substance violations, the current year is the
year of the actual conviction.
Deputy Administrator means Deputy Administrator for Farm Programs,
Farm Service Agency, U.S. Department of Agriculture or their designee.
Determination means a decision issued by a State, county or area FSA
committee or its employees that affects a participant's status in a
program administered by FSA.
Determined acreage means that acreage established by a
representative of the Farm Service Agency by use of official acreage,
digitizing or planimetering areas on the photograph or other
photographic image, or computations from scaled dimensions or ground
measurements.
Direct and counter-cyclical program (DCP) cropland means land that
currently meets the definition of cropland, land that was devoted to
cropland at the time it was enrolled in a production flexibility
contract in accordance with part 1413 of this title and continues to be
used for agricultural purposes, or land that met the definition of
cropland on or after April, 4, 1996, and continues to be used for
agricultural purposes and not for nonagricultural commercial or
industrial use.
Division means the division of a farm into two or more farms or
parts of farms.
Double cropping means, as determined by the Deputy Administrator on
a regional basis, consecutive planting of two specific crops that have
the capability to be planted and carried to maturity for the intended
uses, as reported by the producer, on the same acreage within a 12-month
period. To be considered double cropping, the planting of two specific
crops must be in an area where such double cropping is considered
normal, or could be considered normal, for all growers under normal
growing conditions and growers are typically able to repeat the same
cycle successfully in a subsequent 12-month period.
Entity means a corporation, joint stock company, association,
limited partnership, limited liability partnership, limited liability
company, irrevocable trust, estate, charitable organization, or other
similar organization, including any such organization participating in
the farming operation as a partner in a general partnership, a
participant in a joint venture, or a participant in a similar
organization.
Extra Long Staple (ELS) Cotton means cotton that follows the
standard planting and harvesting practices of the area in which the
cotton is grown, and meets all of the following conditions:
(1) American-Pima, Sea Island, Sealand, all other varieties of the
Barbandense species of cotton and any hybrid thereof, and any other
variety of cotton in which 1 or more of these varieties is predominant;
and,
(2) The acreage is grown in a county designated as an ELS county by
the Secretary; and,
(3) The production from the acreage is ginned on a roller-type gin.
Family member means an individual to whom a person is related as
spouse, lineal ancestor, lineal descendant, or sibling, including:
(1) Great grandparent;
(2) Grandparent;
(3) Parent;
(4) Child, including a legally adopted child;
(5) Grandchild
(6) Great grandchildren;
(7) Sibling of the family member in the farming operation; and
(8) Spouse of a person listed in paragraphs (1) through (7) of this
definition.
Farm means a tract, or tracts, of land that are considered to be a
separate operation under the terms of this part provided further that
where multiple tracts are to be treated as one farm, the tracts must
have the same operator and must also have the same owner except that
tracts of land having different owners may be combined if all owners
agree to the treatment of the multiple tracts as one farm for these
purposes.
[[Page 30]]
Farm inspection means an inspection by an authorized FSA
representative using aerial or ground compliance to determine the extent
of producer adherence to program requirements.
Farm number means a number assigned to a farm by the county
committee for the purpose of identification.
Farmland means the sum of the DCP cropland, forest, acreage planted
to an eligible crop acreage as specified in 1437.3 of this title and
other land on the farm.
Field means a part of a farm which is separated from the balance of
the farm by permanent boundaries such as fences, permanent waterways,
woodlands, and croplines in cases where farming practices make it
probable that such cropline is not subject to change, or other similar
features.
GIS means Geographic Information System or a system that stores,
analyzes, and manipulates spatial or geographically referenced data. GIS
computes distances and acres using stored data and calculations.
GPS means Global Positioning System or a positioning system using
satellites that continuously transmit coded information. The information
transmitted from the satellites is interpreted by GPS receivers to
precisely identify locations on earth by measuring distance from the
satellites.
Grain sorghum means grain sorghum of a feed grain or dual purpose
variety (including any cross that, at all stages of growth, having
characteristics of a feed grain or dual purpose variety) that follows
the standard planting and harvesting practice for grain sorghum for the
area in which the grain sorghum was planted. Sweet sorghum is not
considered a grain sorghum.
Ground measurement means the distance between 2 points on the
ground, obtained by actual use of a chain tape, GPS with a minimum
accuracy level as determined by the Deputy Administrator, or other
measuring device.
Intended use means for a crop or a commodity, the end use for which
it is grown and produced.
Joint operation means a general partnership, joint venture, or other
similar business organization.
Landlord means one who rents or leases farmland to another.
Limited resource farmer or rancher means a farmer or rancher who is
both of the following:
(1) A person whose direct or indirect gross farm sales do not exceed
$176,800 (2014 program year) in each of the 2 calendar years that
precede the most immediately preceding complete taxable year before the
relevant program year that corresponds to the relevant program year (for
example, for the 2014 program year, the two years would be 2011 and
2012), adjusted upwards in later years for any general inflation; and
(2) A person whose total household income was at or below the
national poverty level for a family of four in each of the same two
previous years referenced in paragraph (1) of this definition. (Limited
resource farmer or rancher status can be determined using a Web site
available through the Limited Resource Farmer and Rancher Online Self
Determination Tool through National Resource and Conservation Service at
http://www.lrftool.sc.egov.usda.gov.)
Measurement service means a measurement of acreage or farm-stored
commodities performed by a representative of FSA and paid for by the
producer requesting the measurement.
Measurement service after planting means determining a crop or
designated acreage after planting but before the farm operator files a
report of acreage for the crop.
Measurement service guarantee means a guarantee provided when a
producer requests and pays for an authorized FSA representative to
measure acreage for FSA and CCC program participation unless the
producer takes action to adjust the measured acreage. If the producer
has taken no such action, and the measured acreage is later discovered
to be incorrect, the acreage determined pursuant to the measurement
service will be used for program purposes for that program year.
Minor child means an individual who is under 18 years of age. For
the purpose of programs under chapters VII and XIV of this title, State
court proceedings conferring majority on an individual under 18 years of
age will not
[[Page 31]]
change such an individual's status as a minor.
Nonagricultural commercial or industrial use means land that is no
longer suitable for producing annual or perennial crops, including
conserving uses, or forestry products.
Normal planting period means that period during which the crop is
normally planted in the county, or area within the county, with the
expectation of producing a normal crop.
Normal row width means the normal distance between rows of the crop
in the field, but not less than 30 inches for all crops.
Oats means oats that follows the standard planting and harvesting
practice of oats for the area in which the oats are grown.
Operator means an individual, entity, or joint operation who is
determined by the FSA county committee to be in control of the farming
operations on the farm.
Owner means one who has legal ownership of farmland, including:
(1) Any agency of the Federal Government; however, such agency is
not eligible to receive any program payment;
(2) One who is buying farmland under a contract for deed; or
(3) One who has a life-estate in the property.
Partial reconstitution means a reconstitution that is made effective
in the current year for some crops, but is not made effective in the
current year for other crops. This results in the same farm having two
or more farm numbers in one crop year.
Participant means one who participates in, or receives payments or
benefits in accordance with any of the programs administered by FSA.
Pasture means land that is used to, or has the potential to, produce
food for grazing animals.
Person means an individual, or an individual participating as a
member of a joint operation or similar operation, a corporation, joint
stock company, association, limited stock company, limited partnership,
irrevocable trust, revocable trust together with the grantor of the
trust, estate, or charitable organization including any entity
participating in the farming operation as a partner in a general
partnership, a participant in a joint venture, a grantor of a revocable
trust, or a participant in a similar entity, or a State, political
subdivision or agency thereof. To be considered a separate person for
the purpose of this part, the individual or other legal entity must:
(1) Have a separate and distinct interest in the land or the crop
involved;
(2) Exercise separate responsibility for such interest; and
(3) Be responsible for the cost of farming related to such interest
from a fund or account separate from that of any other individual or
entity.
Planted and considered planted (P&CP) means with respect to an
acreage amount, the sum of the planted and prevented planted acres on
the farm approved by the FSA county committee for a crop. P&CP is
limited to initially planted or prevented planted crop acreage, except
for crops planted in an FSA approved double-cropping sequence.
Subsequently planted crop acreage and replacement crop acreage are not
included as P&CP.
Producer means an owner, operator, landlord, tenant, or
sharecropper, who shares in the risk of producing a crop and who is
entitled to share in the crop available for marketing from the farm, or
would have shared had the crop been produced. A producer includes a
grower of hybrid seed.
Quota means the pounds allocated to a farm for a commodity in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Random inspection means an examination of a farm by an authorized
representative of FSA selected as a part of an impartial sample to
determine the adherence to program requirements.
Reconstitution means a change in the land constituting a farm as a
result of combination or division.
Reported acreage means the acreage reported by the farm operator,
farm owner, farm producer, or their agent on a Form prescribed by the
FSA.
Required inspection means an examination by an authorized
representative of FSA of a farm specifically selected by application of
prescribed rules to determine adherence to program requirements or to
verify the
[[Page 32]]
farm operator's, farm owner's, farm producer, or agent's report.
Rice means rice that follows the standard planting and harvesting
practices of the area excluding sweet, glutinous, or candy rice such as
Mochi Gomi.
Secretary means the Secretary of Agriculture of the United States,
or a designee.
Sharecropper means one who performs work in connection with the
production of a crop under the supervision of the operator and who
receives a share of such crop for its labor.
Skip-row or strip-crop planting means a cultural practice in which
strips or rows of the crop are alternated with strips of idle land or
another crop.
Socially disadvantaged farmer or rancher means a farmer or rancher
who is a member of a socially disadvantaged group whose members have
been subjected to racial, ethnic, or gender prejudice because of their
identity as members of a group without regard to their individual
qualities. Socially disadvantaged groups include the following and no
others unless approved in writing by the Deputy Administrator:
(1) American Indians or Alaskan Natives,
(2) Asians or Asian-Americans,
(3) Blacks or African-Americans,
(4) Hispanics or Hispanic-Americans,
(5) Native Hawaiians or other Pacific Islanders, and
(6) Women.
Staking and referencing means determining an acreage before planting
by:
(1) Measuring or computing a delineated area from ground
measurements and documenting the area measured; and, (2) Staking and
referencing the area on the ground.
Standard deduction means an acreage that is excluded from the gross
acreage in a field because such acreage is considered as being used for
farm equipment turn-areas. Such acreage is established by application of
a prescribed percentage of the area planted to the crop in lieu of
measuring the turn area.
State committee means the FSA State committee.
Subdivision means a part of a field that is separated from the
balance of the field by temporary boundary, such as a cropline which
could be easily moved or will likely disappear.
Subsequent crop means a crop following an initial crop that is not
in an approved double cropping combination.
Tenant means:
(1) One who rents land from another in consideration of the payment
of a specified amount of cash or amount of a commodity; or
(2) One (other than a sharecropper) who rents land from another
person in consideration of the payment of a share of the crops or
proceeds therefrom.
Tolerance means a prescribed amount within which the reported
acreage and/or production may differ from the determined acreage and/or
production and still be considered as correctly reported.
Tract means a unit of contiguous land under one ownership, which is
operated as a farm, or part of a farm.
Tract combination means the combining of two or more tracts if the
tracts have common ownership and are contiguous.
Tract division means the dividing of a tract into two or more tracts
because of a change in ownership or operation.
Turn-area means the area across the ends of crop rows which is used
for operating equipment necessary to the production of a row crop (also
called turn row, headland, or end row).
United States means all 50 States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico and any other territory or
possession of the United States.
Upland cotton means planted and stub cotton that is not considered
extra long staple cotton, and that follows the standard planting and
harvesting practices of the area and is produced from other than pure
strain varieties of the Barbadense species, any hybrid thereof, or any
other variety of cotton in which one or more of these varieties
predominate. For program purposes, brown lint cotton is considered
upland cotton.
Wheat means wheat for feed or dual purpose variety that follows the
standard planting and harvesting practice of
[[Page 33]]
wheat for the area in which the wheat is grown.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004, as amended at 79 FR
74571, Dec. 15, 2014; 80 FR 41994, July 16, 2015]
Sec. 718.3 State committee responsibilities.
(a) The State committee shall, with respect to county committees:
(1) Take any action required of the county committee, which the
county committee fails to take in accordance with this part;
(2) Correct or require the county committee to correct any action
taken by such committee, which is not in accordance with this part; or
(3) Require the county committee to withhold taking any action which
is not in accordance with this part.
(b) The State committee shall submit to the Deputy Administrator
requests to deviate from deductions prescribed in Sec. 718.109, or the
error amount or percentage for refunds of redetermination costs as
prescribed in Sec. 718.112.
[61 FR 37552, July 18, 1996, as amended at 80 FR 41994, July 16, 2015]
Sec. 718.4 Authority for farm entry and providing information.
(a) This section applies to all farms that have a tobacco allotment
or quota under part 723 of this chapter and all farms that are currently
participating in programs administered by FSA.
(b) A representative of FSA may enter any farm that participates in
an FSA or CCC program in order to conduct a farm inspection as defined
in this part. A program participant may request that the FSA
representative present written authorization for the farm inspection
before granting access to the farm. If a farm inspection is not allowed
within 30 days of written authorization:
(1) All FSA and CCC program benefits for that farm shall be denied;
(2) The person preventing the farm inspection shall pay all costs
associated with the farm inspection;
(3) The entire crop production on the farm will be considered to be
in excess of the quota established for the farm; and
(4) For tobacco, the farm operator must furnish proof of disposition
of:
(i) All tobacco which is in addition to the production shown on the
marketing card issued with respect to such farm; and
(ii) No credit will be given for disposing of excess tobacco other
than that identified by a marketing card unless disposed of in the
presence of FSA in accordance with Sec. 718.109 of this part.
(c) If a program participant refuses to furnish reports or data
necessary to determine benefits in accordance with paragraph (a) of this
section, or FSA determines that the report or data was erroneously
provided through the lack of good faith, all program benefits relating
to the report or data requested will be denied.
Sec. 718.5 Rule of fractions.
(a) Fractions shall be rounded after completion of the entire
associated computation. All mathematical calculations shall be carried
to two decimal places beyond the number of decimal places required by
the regulations governing each program. In rounding, fractional digits
of 49 or less beyond the required number of decimal places shall be
dropped; if the fractional digits beyond the required number of decimal
places are 50 or more, the figure at the last required decimal place
shall be increased by ``1'' as follows:
------------------------------------------------------------------------
Required decimal Computation Result
------------------------------------------------------------------------
Whole numbers...................... 6.49 (or less)........ 6
6.50 (or more)........ 7
Tenths............................. 7.649 (or less)....... 7.6
7.650 (or more)....... 7.7
Hundredths......................... 8.8449 (or less)...... 8.84
8.8450 (or more)...... 8.85
Thousandths........................ 9.63449 (or less)..... 9.634
9.63450 (or more)..... 9.635
0 thousandths...................... 10.993149 (or less)... 10.9931
10.993150 (or more)... 10.9932
------------------------------------------------------------------------
(b) The acreage of each field or subdivision computed for tobacco
and CCC disaster assistance programs shall be recorded in acres and
hundredths of an acre, dropping all thousandths of an acre. The acreage
of each field or subdivision computed for crops, except tobacco, shall
be recorded in acres and tenths of an acre, rounding all hundredths of
an acre to the nearest tenth.
Sec. 718.6 Controlled substance.
(a) The following terms apply to this section:
[[Page 34]]
(1) USDA benefit means the issuance of any grant, contract, loan, or
payment by appropriated funds of the United States.
(2) Person means an individual.
(b) Notwithstanding any other provision of law, any person convicted
under Federal or State law of:
(1) Planting, cultivating, growing, producing, harvesting, or
storing a controlled substance in any crop year is ineligible during the
crop year of conviction and the four succeeding crop years, for any of
the following USDA benefits:
(i) Any payments or benefits under the Direct and Counter Cyclical
Program (DCP) in accordance with part 1412 of this title;
(ii) Any payments or benefits for losses to trees, crops, or
livestock covered under disaster programs administered by FSA;
(iii) Any price support loan available in accordance with part 1421
of this title;
(iv) Any price support or payment made under the Commodity Credit
Corporation Charter Act;
(v) A farm storage facility loan made under section 4(h) of the
Commodity Credit Corporation Charter Act or any other Act;
(vi) Crop Insurance under the Federal Crop Insurance Act;
(vii) A loan made or guaranteed under the Consolidated Farm and
Rural Development Act or any other law administered by FSA's Farm Loan
Programs.
(2) Possession or trafficking of a controlled substance, is
ineligible for any or all USDA benefits:
(i) At the discretion of the court,
(ii) To the extent and for a period of time the court determines.
(c) If a person denied benefits under this section is a shareholder,
beneficiary, or member of an entity or joint operation, benefits for
which the entity or joint operation is eligible will be reduced, for the
appropriate period, by a percentage equal to the total interest of the
shareholder, beneficiary, or member.
[72 FR 63284, Nov. 8, 2007]
Sec. 718.7 Furnishing maps.
(a) A reasonable number, as determined by FSA, of reproductions of
photographs, mosaic maps, and other maps will be made available to the
owner of a farm, an insurance company reinsured by the Federal Crop
Insurance Corporation (FCIC), or a private party contractor performing
official duties on behalf of FSA, CCC, and other USDA agencies.
(b) For all others, reproductions will be made available at the rate
FSA determines will cover the cost of making such items available.
[80 FR 41994, July 16, 2015]
Sec. 718.8 Administrative county.
(a) If all land on the farm is physically located in one county, the
farm will be administratively located in that county, except as provided
in the rest of this section.
(b) In cases where there is no FSA office in the county in which the
farm is physically located or FSA county offices have been consolidated,
the farm will be administratively located in a county contiguous to the
physical county in the same State that is most convenient for the farm
operator and owner.
(c) If a county contiguous to the county in which the farm is
physically located in the same State does not have an FSA county office,
the farm will be administratively located in a contiguous county in
another contiguous State that is convenient to the farm operator and
owner. Requests for changes made to administrative county under this
paragraph must be made to FSA by August 1 of each year for the change to
take effect that calendar year.
(d) When land on the farm is physically located in more than one
county, the farm will be administered in one county office responsible
for administration of programs for one or more of the physical counties
involved in the farm's constitution as determined by FSA. Paragraph (b)
or (c) of this section apply if changes occur to that administrative
county.
[[Page 35]]
(e) The operator and owner of a farm administered in any county can
request a change of administrative county to another county in the same
State by August 1 for the change to take effect that calendar year.
Requests for change in administrative county will be reviewed and
approved by county committee if all the following can be determined to
apply:
(1) The requested change does not impact the constitution of a farm;
(2) The requested change will not result in increased program
eligibility or additional benefits for the farm's producers that would
not be earned absent the change in administrative county being made; and
(3) The change is not to circumvent any of the provisions of other
program regulations to which this part applies.
(f) The State committee will submit all requests for exceptions from
regulations specified in this section to the Deputy Administrator.
[79 FR 57713, Sept. 26, 2014, as amended at 80 FR 119, Jan. 2, 2015; 80
FR 41995, July 16, 2015]
Sec. 718.9 Signature requirements.
(a) When a program authorized by this chapter or chapter XIV of this
title requires the signature of a producer, landowner, landlord, or
tenant, then a spouse may sign all such FSA or CCC documents on behalf
of the other spouse, except as otherwise specified in this section,
unless such other spouse has provided written notification to FSA and
CCC that such action is not authorized. The notification must be
provided to FSA for each farm.
(b) A spouse may not sign a document on behalf of the other spouse
with respect to:
(1) Program document required to be executed in accordance with part
3 of this title;
(2) Easements entered into under part 1410 of this title;
(3) Power of attorney;
(4) Such other program documents as determined by FSA or CCC.
(c) An individual; duly authorized officer of a corporation; duly
authorized partner of a partnership; executor or administrator of an
estate; trustee of a trust; guardian; or conservator may delegate to
another the authority to act on their behalf with respect to FSA and CCC
programs administered by USDA service center agencies by execution of a
Power of Attorney, or such other form as approved by the Deputy
Administrator. FSA and CCC may, at their discretion, allow the
delegations of authority by other individuals through use of the Power
of Attorney or such other form as approved by the Deputy Administrator.
(d) Notwithstanding another provision of this regulation or any
other FSA or CCC regulation in this title, a parent may execute
documents on behalf of a minor child unless prohibited by a statute or
court order.
(e) Notwithstanding any other provision in this title, an authorized
agent of the Bureau of Indian Affairs (BIA) of the United States
Department of Interior may sign as agent for landowners with properties
affiliated with or under the management or trust of the BIA. For
collection purposes, such payments will be considered as being made to
the persons who are the beneficiaries of the payment or may,
alternatively, be considered as an obligation of all persons on the farm
in general. In the event of a need for a refund or other claim may be
collected, among other means, by other monies due such persons or the
farm.
(f) Documents that were previously acted on and approved by the FSA
county office or county committee will not subsequently be determined
inadequate or invalid because of the lack of signature authority of any
person signing the document on behalf of the applicant or any other
individual, entity, general partnership, or joint venture, unless the
person signing the program document knowingly and willfully falsified
the evidence of signature authority or a signature. However, FSA may
require affirmation of the document by those parties deemed appropriate
for an affirmation, as determined by the Deputy Administrator. Nothing
in this paragraph relieves participants of any other program
requirements.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004, as amended at 80 FR
41995, July 16, 2015]
Sec. 718.10 Time limitations.
Whenever the final date prescribed in any of the regulations in this
title for the performance of any act falls on a
[[Page 36]]
Saturday, Sunday, national holiday, State holiday on which the office of
the county or State Farm Service Agency committee having primary
cognizance of the action required to be taken is closed, or any other
day on which the cognizant office is not open for the transaction of
business during normal working hours, the time for taking required
action shall be extended to the close of business on the next working
day. Or in case the action required to be taken may be performed by
mailing, the action shall be considered to be taken within the
prescribed period if the mailing is postmarked by midnight of such next
working day. Where the action required to be taken is with a prescribed
number of days after the mailing of notice, the day of mailing shall be
excluded in computing such period of time.
Sec. 718.11 Disqualification due to Federal crop insurance violation.
(a) Section 515(h) of the Federal Crop Insurance Act (FCIA) provides
that a person who willfully and intentionally provides false or
inaccurate information to the Federal Crop Insurance Corporation (FCIC)
or to an approved insurance provider with respect to a policy or plan of
FCIC insurance, after notice and an opportunity for a hearing on the
record, will be subject to one or more of the sanctions described in
section 515(h)(3). In section 515(h)(3), the FCIA specifies that in the
case of a violation committed by a producer, the producer may be
disqualified for a period of up to 5 years from receiving any monetary
or non-monetary benefit under a number of programs. The list includes,
but is not limited to, benefits under:
(1) The FCIA.
(2) The Agricultural Market Transition Act (7 U.S.C. 7201 et seq.),
including the Noninsured Crop Disaster Assistance Program under section
196 of that Act (7 U.S.C. 7333).
(3) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.).
(4) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et
seq.).
(5) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.).
(6) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et
seq.).
(7) The Consolidated Farm and Rural Development Act (7 U.S.C. 1921
et seq.).
(8) Any law that provides assistance to a producer of an
agricultural commodity affected by a crop loss or a decline in prices of
agricultural commodities.
(b) Violation determinations are made by FCIC. However, upon notice
from FCIC to FSA that a producer has been found to have committed a
violation to which paragraph (a) of this section applies, that person
will be ineligible for payments under the programs specified in
paragraph (a) of this section that are funded by FSA for the same period
of time for which, as determined by FCIC, the producer will be
ineligible for crop insurance benefits of the kind referred to in
paragraph (a)(1) of this section. Appeals of the determination of
ineligibility will be administered under the rules set by FCIC.
(c) Other sanctions may also apply.
[72 FR 63284, Nov. 8, 2007]
Subpart B_Determination of Acreage and Compliance
Source: 68 FR 16176, Apr. 3, 2003, unless otherwise noted.
Sec. 718.101 Measurements.
(a) Measurement services include, but are not limited to, measuring
land and crop areas, quantities of farm-stored commodities, and
appraising the yields of crops in the field when required for program
administration purposes. The county committee shall provide measurement
service if the producer requests such service and pays the cost, except
that service shall not be provided to determine total acreage or
production of a crop when the request is made:
(1) After the established final reporting date for the applicable
crop, unless a late filed report is accepted as provided in Sec.
718.104;
(2) After the farm operator has furnished production evidence when
required for program administration purposes except as provided in this
subpart; or
(3) In connection with a late-filed report of acreage, unless there
is evidence of the crop's existence in the
[[Page 37]]
field and use made of the crop, or the lack of the crop due to a
disaster condition affecting the crop.
(b) The acreage requested to be measured by staking and referencing
shall not exceed the effective farm allotment for marketing quota crops
or acreage of a crop that is limited to a specific number of acres to
meet any program requirement.
(c) When a producer requests, pays for, and receives written notice
that measurement services have been furnished, the measured acreage
shall be guaranteed to be correct and used for all program purposes for
the current year even though an error is later discovered in the
measurement thereof, if the producer has taken action with an economic
significance based on the measurement service, and the entire crop
required for the farm was measured. If the producer has not taken action
with an economic significance based on the measurement service, the
producer shall be notified in writing that an error was discovered and
the nature and extent of such error. In such cases, the corrected
acreage will be used for determining program compliance for the current
year.
(d) When a measurement service reveals acreage in excess of the
permitted acreage and the allowable tolerance as defined in this part,
the producer must destroy the excess acreage and pay for FSA to verify
destruction, in order to keep the measurement service guarantee.
[68 FR 16176, Apr. 3, 2003, as amended at 80 FR 41995, July 16, 2015]
Sec. 718.102 Acreage reports.
(a) In order to be eligible for benefits, participants in the
programs specified in paragraphs (b)(1) through (b)(6) of this section
must submit accurate information annually as required by these
provisions.
(b)(1) Participants in programs for which eligibility for benefits
is tied to base acres must report the acreage of fruits and vegetables
planted for harvest on a farm enrolled in such program;
(2) Participants in the programs governed by parts 1421 and 1427 of
this title must report the acreage planted to a commodity for harvest
for which a marketing assistance loan or loan deficiency payment is
requested;
(3) Participants in the programs governed by part 1410 of this title
must report the intended use of land enrolled in such programs;
(4) All participants in the programs governed by part 1437 of this
title must report all acreage and intended use of the eligible crop in
the country in which the producer has a share;
(5) Participants in the programs governed by part 723 of this
chapter and part 1464 of this title must report the acreage planted to
tobacco by kind on all farms that have an effective allotment or quota
greater than zero;
(6) All participants in the programs governed by parts 1412, 1421,
and 1427 of this title must report the use of all cropland on the farm.
(7) All producers reporting acreage as prevented planted acreage or
failed acreage must provide documentation that meets the provisions of
Sec. 718.103 to the FSA county office where the farm is administered.
(c) The annual acreage reports required in paragraph (a) of this
section must be filed with the county committee by the farm operator,
farm owner, producer of the crop on the farm, or duly authorized
representative by the final reporting date applicable to the crop as
established by the Deputy Administrator.
(d) Participants in programs to which this part is applicable must
report all crops, in all counties, in which they have an interest. This
includes crops on cropland and noncropland, including native or improved
grass that will be hayed or grazed.
[68 FR 16176, Apr. 3, 2003, as amended at 71 FR 13741, Mar. 17, 2006; 79
FR 74571, Dec. 15, 2014; 80 FR 41995, July 16, 2015]
Sec. 718.103 Prevented planted and failed acreage.
(a) Prevented planting is the inability to plant an eligible crop
with proper equipment during the planting period as a result of an
eligible cause of loss, as determined by CCC. The eligible cause of loss
that prevented the planting must have:
(1) Occurred after a previous planting period for the crop;
[[Page 38]]
(2) Occurred before the final planting date for the crop in the
applicable crop year or, in the case of multiple plantings, the harvest
date of the first planting in the applicable planting period, and
(3) Similarly affected other producers in the area, as determined by
CCC.
(b) FSA may approve acreage as ``prevented planted acreage'' if all
other conditions for such approval are met and provided the conditions
in paragraphs (b)(1) through (6) of this section are met.
(1) Except as specified in paragraph (b)(2) of this section,
producers must report the acreage, on forms specified by FSA, within 15
calendar days after the final planting date determined for the crop by
FSA.
(2) If the acreage is reported after the period identified in
paragraph (b)(1) of this section, the application must be filed in time
to permit:
(i) The county committee or its authorized representative to make a
farm visit to verify eligible disaster conditions that prevented the
specified acreage or crop from being planted; or
(ii) The county committee or its authorized representative the
opportunity to determine, based on visual inspection, that the acreage
or crop in question was affected by eligible disaster conditions such as
damaging weather or other adverse natural occurrences that prevented the
acreage or crop from being planted.
(3) A farm visit to inspect the acreage or crop is required for all
late-filed acreage reports where prevented planting credit is sought.
Under no circumstance may acreage reported after the 15-day period
referenced in paragraph (b)(1) of this section be deemed acceptable
unless the criteria in paragraph (b)(2) of this section are met. State
and county committees do not have the authority to waive the field
inspection and verification provisions for late-filed reports.
(4) All determinations made during field inspections must be
documented on each late-filed acreage report, with results also recorded
in county committee minutes to support the documentation.
(5) The acreage must have been prevented from being planted as the
result of a natural disaster and not a management decision.
(6) The prevented planted acreage report was approved by the county
committee. The county committee may disapprove prevented planted acreage
credit if it is not satisfied with the documentation provided.
(c) To receive prevented planted credit for acreage, the producer
must show to the satisfaction of FSA that the producer intended to plant
the acreage. Documentation supporting such intent includes documents
related to field preparation, seed purchase, and any other information
that shows the acreage could and would have been planted and harvested
absent the natural disaster or eligible cause of loss that prevented the
planting.
(d) Prevented planted acreage credit will not be given to crops
where the prevented-planted acreage was affected by drought, unless:
(1) On the final planting date for non-irrigated acreage, the area
that is prevented from being planted has insufficient soil moisture for
germination of seed and progress toward crop maturity because of a
prolonged period of dry weather, as determined by CCC; and
(2) Prolonged precipitation deficiencies exceeded the D2 level as
determined using the U.S. Drought Monitor; and
(3) Verifiable information is collected from sources whose business
or purpose it is to record weather conditions, as determined by CCC, and
including but not limited to the local weather reporting stations of the
U.S. National Weather Service.
(e) Prevented planted acreage credit under this part applies to
irrigated crops where the acreage was prevented from being planted due
to a lack of water resulting from drought conditions or contamination by
saltwater intrusion of an irrigation supply resulting from drought
conditions if there was not a reasonable probability of having adequate
water to carry out an irrigation practice.
(f) Acreage ineligible for prevented planting coverage includes, but
is not limited to, acreage:
[[Page 39]]
(1) With respect to which the planting history or conservation plans
indicate it would remain fallow for crop rotation purposes;
(2) Used for conservation purposes or intended to be or considered
to have been left unplanted under any program administered by USDA,
including the Conservation Reserve and Wetland Reserve Programs;
(3) Not planted because of a management decision;
(4) Affected by the containment or release of water by any
governmental, public, or private dam or reservoir project, if an
easement exists on the acreage affected for the containment or release
of water;
(5) Where any other person receives a prevented planted payment for
any crop for the same crop year, unless the acreage meets all the
requirements for double cropping under this part;
(6) Where pasture or other forage crop is in place on the acreage
during the time that planting of the crop generally occurs in the area;
(7) Where another crop is planted (previous or subsequent) that does
not meet the double cropping definition;
(8) Where any volunteer or cover crop is hayed, grazed, or otherwise
harvested on the acreage for the same crop year;
(9) Where there is an inadequate supply of irrigation water
beginning on the Federal crop insurance sale closing date for the
previous crop year or the Noninsured Crop Disaster Assistance Program
(NAP) application closing date for the crop as specified in part 1437 of
this title through the final planting date of the current year;
(10) On which a failure or breakdown of irrigation equipment or
facilities, unless the failure or breakdown is due to a natural
disaster;
(11) That is under quarantine imposed by a county, State, or Federal
government agency;
(12) That is affected by chemical or herbicide residue, unless the
residue is due to a natural disaster;
(13) That is affected by drifting herbicide;
(14) On which a crop was produced, but the producer was unable to
obtain a market for the crop;
(15) Involving a planned planting of a ``value loss crop'' as that
term is defined for NAP as specified in part 1437 of this title,
including, but not limited to, Christmas trees, aquaculture, or
ornamental nursery, for which NAP assistance is provided under value
loss procedure;
(16) For which the claim for prevented planted credit relates to
trees or other perennials unless the producer can prove resources were
available to plant, grow, and harvest the crop, as applicable;
(17) That is affected by wildlife damage;
(18) Upon which, the reduction in the water supply for irrigation is
due to participation in an electricity buy-back program, or the sale of
water under a water buy-back or legislative changes regarding water
usage, or any other cause which is not a natural disaster; or
(19) That is devoted to non-cropland.
(g) CCC may allow exceptions to acreage ineligible for prevented
planting coverage when surface water or ground water is reduced because
of a natural disaster (as determined by CCC).
(h) Failed acreage is acreage that was planted with the proper
equipment during the planting period but failed as a result of an
eligible cause of loss, as determined by CCC.
(i) To be approved by CCC as failed acreage the acreage must have
been reported as failed acreage before disposition of the crop, and the
acreage must have been planted under normal conditions but failed as the
result of a natural disaster and not a management decision. Producers
who file a failed acreage report must have the request acted on by the
county committee. The county committee may will deny the acreage report
if it is not satisfied with the documentation provided.
(j) To receive failed acreage credit the producer must show all of
the following:
(1) That the acreage was planted under normal conditions using the
proper equipment with the intent to harvest the acreage.
(2) Provide documentation that the crop was planted using farming
practices consistent for the crop and area,
[[Page 40]]
but could not be brought to harvest because of disaster-related
conditions.
(k) The eligible cause for failed acreage must have:
(1) Occurred after the crop was planted, and
(2) Before the normal harvest date for the crop in the applicable
crop year or in the case of multiple plantings, the harvest date of the
first planting in the applicable planting period, and
(3) Other producers in the area were similarly affected as
determined by CCC.
(l) Eligible failed acreage will be determined on the basis of the
producer planting the crop under normal conditions with the expectation
to take the crop to harvest.
(m) Acreage ineligible for failed acreage credit includes, but is
not limited to acreage:
(1) Which was planted using methods that could not be considered
normal for the area and without the expectation of harvest;
(2) Used for conservation purposes or intended to be or considered
to have been un-harvested under any program administered by USDA,
including the Conservation Reserve and Wetland Reserve Programs; or
(3) That failed because of a management decision.
[71 FR 13741, Mar. 17, 2006, as amended at 80 FR 41995, July 16, 2015]
Sec. 718.104 Late-filed and revised acreage reports.
(a) Late-filed acreage reports may be accepted after the final
reporting date and processed by FSA if both of the following apply:
(1) The crop or identifiable crop residue remains in the field,
permitting FSA to verify and determine the acreage and
(2) The amount of acreage has not already been determined by FSA.
(b) The farm operator filing a report late must pay the cost of a
farm inspection unless FSA determines that failure to report in a timely
manner was beyond the producer's control.
(c) Revised acreage reports may be filed with respect to 2005 and
subsequent years to change the acreage reported if:
(1) The acreage has not already been determined by FSA; and
(2) Actual crop or residue is present in the field.
(d) Revised reports shall be filed and accepted:
(1) At any time for all crops if the crop or residue still exists in
the field for inspection to verify the existence and use made of the
crop, the lack of the crop, or a disaster condition affecting the crop;
and
(2) If the producer was in compliance with all other program
requirements at the reporting date.
[71 FR 13742, Mar. 17, 2006, as amended as 80 FR 41996, July 16, 2015]
Sec. 718.105 Tolerances, variances, and adjustments.
(a) Tolerance is the amount by which the determined acreage for a
crop may differ from the reported acreage or allotment for the crop and
still be considered in compliance with program requirements under
Sec. Sec. 718.102(b)(1), (b)(3) and (b)(5).
(b) Tolerance rules apply to those fields for which a staking and
referencing was performed but such acreage was not planted according to
those measurements or when a measurement service is not requested for
acreage destroyed to meet program requirements.
(c) Tolerance rules do not apply to:
(1) Program requirements of Sec. Sec. 718.102(b)(2), (b)(4) and
(b)(6);
(2) Official fields upon which the entire field is devoted to one
crop;
(3) Those fields for which staking and referencing was performed and
such acreage was planted according to those measurements; or
(4) The adjusted acreage for farms using measurement after planting
which have a determined acreage greater than the marketing quota crop
allotment.
(d) An administrative variance is applicable to all allotment crop
acreages. Allotment crop acreages as determined in accordance with this
part shall be deemed in compliance with the effective farm allotment or
program requirement when the determined acreage does not exceed the
effective farm allotment by more than an administrative variance
determined as follows:
[[Page 41]]
(1) For all kinds of tobacco subject to marketing quotas, except
dark air-cured and fire-cured the larger of 0.1 acre or 2 percent of the
allotment; and
(2) For dark air-cured and fire-cured tobacco, an acreage based on
the effective acreage allotment as provided in the table as follows:
------------------------------------------------------------------------
Administrative
Effective acreage allotment is within this range variance
------------------------------------------------------------------------
0.01 to 0.99......................................... 0.01
1.00 to 1.49......................................... 0.02
1.50 to 1.99......................................... 0.03
2.00 to 2.49......................................... 0.04
2.50 to 2.99......................................... 0.05
3.00 to 3.49......................................... 0.06
3.50 to 3.99......................................... 0.07
4.00 to 4.49......................................... 0.08
4.50 and up.......................................... 0.09
------------------------------------------------------------------------
(e) A tolerance applies to tobacco, other than flue-cured or burley,
if the measured acreage exceeds the allotment by more than the
administrative variance but by not more than the tolerance. Such excess
acreage of tobacco may be adjusted to the effective farm acreage
allotment to avoid marketing quota penalties or receive price support.
(f) If the acreage report for a crop is outside the tolerance for
that crop:
(1) FSA may consider the requirements of Sec. Sec. 718.102 (b)(1),
(b)(3) and (b)(5) not to have been met, and;
(2) Participants may be ineligible for all or a portion of payments
or benefits subject to the requirements of Sec. Sec. 718.102 (b)(1),
(b)(3) and (b)(5).
[68 FR 16176, Apr. 3, 2003, as amended at 80 FR 41996, July 16, 2015]
Sec. 718.106 Non-compliance and false acreage reports.
(a) Participants who provide false or inaccurate acreage reports may
be ineligible for some or all payments or benefits, subject to the
requirements of Sec. 718.102(b)(1) and (3).
(b) [Reserved]
[80 FR 41996, July 16, 2015]
Sec. 718.107 Acreages.
(a) If an acreage has been established by FSA for an area delineated
on an aerial photograph or within a GIS, such acreage will be recognized
by the county committee as the acreage for the area until such time as
the boundaries of such area are changed. When boundaries not visible on
the aerial photograph are established from data furnished by the
producer, such acreage shall not be recognized as official acreage until
an authorized representative of FSA verifies the boundaries.
(b) Measurements of any row crop shall extend beyond the planted
area by the larger of 15 inches or one-half the distance between the
rows.
(c) The entire acreage of a field or subdivision of a field devoted
to a crop shall be considered as devoted to the crop subject to a
deduction or adjustment except as otherwise provided in this part.
Sec. 718.108 Measuring acreage including skip row acreage.
(a) When one crop is alternating with another crop, whether or not
both crops have the same growing season, only the acreage that is
actually planted to the crop being measured will be considered to be
acreage devoted to the measured crop.
(b) Subject to the provisions of this paragraph and section, whether
planted in a skip row pattern or without a pattern of skipped rows, the
entire acreage of the field or subdivision may be considered as devoted
to the crop only where the distance between the rows, for all rows, is
40 inches or less. If there is a skip that creates idle land wider than
40 inches, or if the distance between any rows is more than 40 inches,
then the area planted to the crop shall be considered to be that area
which would represent the smaller of; a 40 inch width between rows, or
the normal row spacing in the field for all other rows in the field--
those that are not more than 40 inches apart. The allowance for
individual rows would be made based on the smaller of actual spacing
between those rows or the normal spacing in the field. For example, if
the crop is planted in single, wide rows that are 48 inches apart, only
20 inches to either side of each row (for a total of 40 inches between
the two rows) could, at a maximum, be considered as devoted as the crop
and normal spacing in the field would control. Half the normal distance
between rows will also be allowed beyond the outside planted rows not to
exceed 20 inches
[[Page 42]]
and will reflect normal spacing in the field.
(c) In making calculations under this section, further reductions
may be made in the acreage considered planted if it is determined that
the acreage is more sparsely planted than normal using reasonable and
customary full production planting techniques.
(d) The Deputy Administrator has the discretionary authority to
allow row allowances other than those specified in this section in those
instances in which crops are normally planted with spacings greater or
less than 40 inches, such as in case of tobacco, or where other
circumstances are present which the Deputy Administrator finds justifies
that allowance.
(e) Paragraphs (a) through (d) of this section shall apply with
respect to the 2003 and subsequent crops. For preceding crops, the rules
in effect on January 1, 2002, shall apply.
Sec. 718.109 Deductions.
(a) Any contiguous area which is not devoted to the crop being
measured and which is not part of a skip-row pattern under Sec. 718.108
shall be deducted from the acreage of the crop if such area meets the
following minimum national standards or requirements:
(1) A minimum width of 30 inches;
(2) For tobacco--three-hundredths (.03) acre. Turn areas, terraces,
permanent irrigation and drainage ditches, sod waterways, non-cropland,
and subdivision boundaries each of which is at least 30 inches in width
may be combined to meet the 0.03-acre minimum requirement; or
(3) For all other crops and land uses--one-tenth (.10) acre. Turn
areas, terraces, permanent irrigation and drainage ditches, sod
waterways, non-cropland, and subdivision boundaries each of which is at
least 30 inches in width and each of which contain 0.1 acre or more may
be combined to meet any larger minimum prescribed for a State in
accordance with this subpart.
(b) If the area not devoted to the crop is located within the
planted area, the part of any perimeter area that is more than 217.8
feet (33 links) in width will be considered to be an internal deduction
if the standard deduction is used.
(c) A standard deduction of 3 percent of the area devoted to a row
crop and zero percent of the area devoted to a close-sown crop may be
used in lieu of measuring the acreage of turn areas.
Sec. 718.110 Adjustments.
(a) The farm operator or other interested producer having excess
tobacco acreage (other than flue-cured or burley) may adjust an acreage
of the crop in order to avoid a marketing quota penalty if such person:
(1) Notifies the county committee of such election within 15
calendar days after the date of mailing of notice of excess acreage by
the county committee; and
(2) Pays the cost of a farm inspection to determine the adjusted
acreage prior to the date the farm visit is made.
(b) The farm operator may adjust an acreage of tobacco (except flue-
cured and burley) by disposing of such excess tobacco prior to the
marketing of any of the same kind of tobacco from the farm. The
disposition shall be witnessed by a representative of FSA and may take
place before, during, or after the harvesting of the same kind of
tobacco grown on the farm. However, no credit will be allowed toward the
disposition of excess acreage after the tobacco is harvested but prior
to marketing, unless the county committee determines that such tobacco
is representative of the entire crop from the farm of the kind of
tobacco involved.
Sec. 718.111 Notice of measured acreage.
(a) FSA will provide notice of measured acreage and mail it to the
farm operator. This notice constitutes notice to all parties who have
ownership, leasehold interest, or other interest in such farm.
(b) [Reserved]
[80 FR 41996, July 16, 2015]
Sec. 718.112 Redetermination.
(a) A redetermination of crop acreage, appraised yield, or farm-
stored production for a farm may be initiated by the county committee,
State committee, or Deputy Administrator at any time. Redetermination
may be requested by a producer with an interest in the farm if the
producer pays the
[[Page 43]]
cost of the redetermination. The request must be submitted to FSA within
5 calendar days after the initial appraisal of the yield of a crop, or
before the farm-stored production is removed from storage. A redeter
mina tion will be undertaken in the manner prescribed by the Deputy
Administrator. A redetermination will be used in lieu of any prior
determination unless it is determined by the representative of the
Deputy Administrator that there is good cause not to do so.
(b) FSA will refund the payment of the cost for a redetermination
when, because of an error in the initial determination:
(1) The appraised yield is changed by at least the larger of:
(i) Five percent or 5 pounds for cotton;
(ii) Five percent or 1 bushel for wheat, barley, oats, and rye; or
(iii) Five percent or 2 bushels for corn and grain sorghum; or
(2) The farm stored production is changed by at least the smaller of
3 percent or 600 bushels; or
(3) The acreage of the crop is:
(i) Changed by at least the larger of 3 percent or 0.5 acre; or
(ii) Considered to be within program requirements.
[68 FR 16176, Apr. 3, 2003, as amended at 80 FR 41996, July 16, 2015]
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Base Acres
Source: 68 FR 16178, Apr. 3, 2003, unless otherwise noted.
Sec. 718.201 Farm constitution.
(a) In order to implement FSA programs and monitor compliance with
regulations, FSA must have records on what land is being farmed by a
particular producer. This is accomplished by a determination of what
land or group of lands ``constitute'' an individual unit or farm. Land
that was properly constituted under prior regulations will remain so
constituted until a reconstitution is required by paragraph (c) of this
section. The constitution and identification of land as a ``farm'' for
the first time and the subsequent reconstitution of a farm made
thereafter will include all land operated by an individual entity or
joint operation as a single farming unit except that it may not include:
(1) Land under separate ownership unless the owners agree in writing
or have previously agreed in writing and the labor, equipment,
accounting system, and management are operated in common by the
operator, but separate from other tracts;
(2) Land under a lease agreement of less than 1 year duration;
(3) Federally owned land unless it is rangeland on which no crops
are planted and on which there are no crop base acres established;
(4) State-owned wildlife lands unless the former owner has
possession of the land under a leasing agreement;
(5) Land constituting a farm that is declared ineligible to be
enrolled in a program under the regulations governing the program;
(6) For base acre crops, land located in counties that are not
contiguous except where:
(i) Counties are divided by a river;
(ii) Counties do not share a common border because of a correction
line adjustment; or
(iii) The land is within 20 miles, by road, of other land that will
be a part of the farming unit;
(7) Land subject to either a default election or a valid election
made under part 1412 of this title for each and all covered commodities
constituted with land that has a different default election or valid
election for each and all covered commodities, irrespective of whether
or not any of the land has base acres; or
(8) Land subject to an election of individual coverage under the
Agriculture Risk Coverage Program (ARC-IC) in any State constituted with
any land in another State.
(b)(1) If all land on the farm is physically located in one county,
the farm shall be administratively located in such county. If there is
no FSA office in the county or the county offices have been
consolidated, the farm shall be administratively located in the
contiguous county most convenient for the farm operator.
[[Page 44]]
(2) If the land on the farm is located in more than one county, the
farm shall be administratively located in either of such counties as the
county committees and the farm operator agree. If no agreement can be
reached, the farm shall be administratively located in the county where
the principal dwelling is situated, or where the major portion of the
farm is located if there is no dwelling.
(c) A reconstitution of a farm either by division or by combination
is required whenever:
(1) A change has occurred in the operation of the land since the
last constitution or reconstitution and as a result of such change the
farm does not meet the conditions for constitution of a farm as
specified in paragraph (a) of this section, except that no
reconstitution will be made if the county committee determines that the
primary purpose of the change in operation is to establish eligibility
to transfer allotments subject to sale or lease, or increase the amount
of program benefits received;
(2) The farm was not properly constituted the previous time;
(3) An owner requests in writing that the land no longer be included
in a farm composed of tracts under separate ownership;
(4) The county committee determines that the farm was reconstituted
on the basis of false information;
(5) The county committee determines that tracts included in a farm
are not being operated as a single farming unit.
(d) Reconstitution shall not be approved if the county committee
determines that the primary purpose of the reconstitution is to:
(1) Circumvent the provisions of part 12 of this title; or
(2) Circumvent any other chapter of this title.
[68 FR 16178, Apr. 3, 2003, as amended at 80 FR 41996, July 16, 2015]
Sec. 718.202 Determining the land constituting a farm.
(a) In determining the constitution of a farm, consideration shall
be given to provisions such as ownership and operation. For purposes of
this part, the following rules shall be applicable to determining what
land is to be included in a farm.
(b) A minor shall be considered to be the same owner or operator as
the parent, court-appointed guardian, or other person responsible for
the minor child, unless the parent or guardian has no interest in the
minor's farm or production from the farm, and the minor:
(1) Is a producer on a farm;
(2) Maintains a separate household from the parent or guardian;
(3) Personally carries out the farming activities; and
(4) Maintains a separate accounting for the farming operation.
(c) A minor shall not be considered to be the same owner or operator
as the parent or court-appointed guardian if the minor's interest in the
farming operation results from being the beneficiary of an irrevocable
trust and ownership of the property is vested in the trust or the minor.
(d) A life estate tenant shall be considered to be the owner of the
property for their life.
(e) A trust shall be considered to be an owner with the beneficiary
of the trust; except a trust can be considered a separate owner or
operator from the beneficiary, if the trust:
(1) Has a separate and distinct interest in the land or crop
involved;
(2) Exercises separate responsibility for the separate and distinct
interest; and
(3) Maintains funds and accounts separate from that of any other
individual or entity for the interest.
(f) The county committee shall require specific proof of ownership.
(g) Land owned by different persons of an immediate family living in
the same household and operated as a single farming unit shall be
considered as being under the same ownership in determining a farm.
(h) All land operated as a single unit and owned and operated by a
parent corporation and subsidiary corporations of which the parent
corporation owns more than 50 percent of the value of the outstanding
stock, or where the parent is owned and operated by subsidiary
corporations, shall be constituted as one farm.
[[Page 45]]
Sec. 718.203 County committee action to reconstitute a farm.
Action to reconstitute a farm may be initiated by the county
committee, the farm owner, or the operator with the concurrence of the
owner of the farm. Any request for a farm reconstitution shall be filed
with the county committee.
Sec. 718.204 Reconstitution of base acres.
(a) Farms will be reconstituted in accordance with this subpart when
it is determined that the land areas are not properly constituted and,
to the extent practicable as determined by county committee, the
reconstitution will be based on the facts and conditions existing at the
time the change requiring the reconstitution occurred.
(b) Reconstitutions will be effective for the calendar year if
initiated by August 1 of that year. Any reconstitution initiated after
August 1 will not be effective for that year; it will be effective for
the subsequent year.
(c) The Deputy Administrator may approve an exception to permit a
reconstitution initiated after August 1 to be effective for the same
year, if FSA determines that the failure is due to administrative
problems as determined by FSA at the local or national level. Producers
have no right to seek an exception under this paragraph. When such
situations exist, FSA will establish procedures under which
reconstitutions will be accepted.
[79 FR 57714, Sept. 26, 2014]
Sec. 718.205 Substantive change in farming operation, and changes
in related legal entities.
(a) Land that is properly constituted as a farm shall not be
reconstituted if:
(1) The reconstitution request is based upon the formation of a
newly established legal entity which owns or operates the farm or any
part of the farm and the county committee determines there is not a
substantive change in the farming operation;
(2) The county committee determines that the primary purpose of the
request for reconstitution is to:
(i) Obtain additional benefits under one or more commodity programs;
(ii) Avoid damages or penalties under a contract or statute;
(iii) Correct an erroneous acreage report; or
(iv) Circumvent any other program provisions. In addition, no farm
shall remain as constituted when the county committee determines that a
substantive change in the farming operation has occurred which would
require a reconstitution, except as otherwise approved by the State
committee with the concurrence of the Deputy Administrator.
(b) In determining whether a substantive change has occurred with
respect to a farming operation, the county committee shall consider
factors such as the composition of the legal entities having an interest
in the farming operation with respect to management, financing, and
accounting. The county committee shall also consider the use of land,
labor, and equipment available to the farming operations and any other
relevant factors that bear on the determination.
(c) Unless otherwise approved by the State committee with the
concurrence of the Deputy Administrator, when the county committee
determines that a corporation, trust, or other legal entity is formed
primarily for the purpose of obtaining additional benefits under the
commodity programs of this title, the farm shall remain as constituted,
or shall be reconstituted, as applicable, when the farm is owned or
operated by:
(1) A corporation having more than 50 percent of the stock owned by
members of the same family living in the same household;
(2) Corporations having more than 50 percent of the stock owned by
stockholders common to more than one corporation; or
(3) Trusts in which the beneficiaries and trustees are family
members living in the same household.
(d) Application of the provisions of paragraph (c) of this section
shall not limit or affect the application of paragraphs (a) and (b) of
this section.
Sec. 718.206 Determining farms, tracts, and base acres when
reconstitution is made by division.
(a) The methods for dividing farms, tracts, and base acres are, in
order of
[[Page 46]]
precedence: Estate, designation by landowner, cropland, and default. The
proper method will be determined on a crop-by-crop basis.
(b) The estate method for reconstitution is the pro-rata
distribution of base acres for a parent farm among the heirs in settling
an estate. If the estate sells a tract of land before the farm is
divided among the heirs, the base acres for that tract will be
determined according to paragraphs (c) through (e) of this section.
(1) Base acres must be divided in accordance with a will, but only
if the county committee determines that the terms of the will are such
that a division can reasonably be made by the estate method.
(2) If there is no will or the county committee determines that the
terms of a will are not clear as to the division of base acres, the base
acres will be apportioned in the manner agreed to in writing by all
interested heirs or devisees who acquire an interest in the property for
which base acres have been established. An agreement by the
administrator or executor will not be accepted in lieu of an agreement
by the heirs or devisees.
(3) If base acres are not apportioned as specified in paragraph
(b)(1) or (2) of this section, the base acres must be divided as
specified in paragraph (d) or (e) of this section, as applicable.
(c) If the ownership of a tract of land is transferred from a parent
farm, the transferring owner may request that the county committee
divide the base acres, including historical acreage that has been double
cropped, between the parent farm and the transferred tract, or between
the various tracts if the entire farm is sold to two or more purchasers.
(1) If the county committee determines that base acres cannot be
divided in the manner designated by the owner because the owner's
designation does not meet the requirements of paragraph (c)(2) of this
section, FSA will notify the owner and permit the owner to revise the
designation to meet the requirements. If the owner does not furnish a
revised designation of base acres within a reasonable time after such
notification, or if the revised designation does not meet the
requirements, the county committee will divide the base acres in a pro-
rata manner in accordance with paragraph (d) or (e) of this section.
(2) The landowner may designate a manner in which base acres are
divided by filing a signed written memorandum of understanding of the
designation of base acres with the county committee before the transfer
of ownership of the land. Both the transferring owner and transferee
must sign the written designation of base acres.
(i) Within 30 days after a prescribed form, letter, or notice of
base acres is issued by FSA following the reconstitution of a farm but
before any subsequent transfer of ownership of the land, all owners in
existence at time of the reconstitution request may seek a different
manner of base acre designation by agreeing in writing by executing a
form CCC-517 or other designated form.
(ii) The landowner must designate the base acres that will be
permanently reduced when the sum of the base acres exceeds the effective
cropland plus double-cropped acres for the farm.
(iii) When the part of the farm from which the ownership is being
transferred was owned for less than 3 years, the designation by
landowner method of designating base acres cannot be used unless the
county committee determines that the primary purpose of the ownership
transfer was other than to retain or to sell base acres. In the absence
of such a determination, and if the farm contains land that has been
owned for less than 3 years, the part of the farm that has been owned
for less than 3 years will be considered as a separate farm and the base
acres must be assigned to that farm in accordance with paragraph (d) or
(e) of this section. Such apportionment will be made prior to any
designation of base acres with respect to the part that has been owned
for 3 years or more.
(3) The designation by landowner method may be applied, at the
owner's request, to land owned by an Indian Tribal Council that is
leased to two or more producers for the production of any crop of a
commodity for which base acres have been established. If the land is
leased to two or more producers, an Indian Tribal Council may
[[Page 47]]
request that the county committee divide the base acres between the
applicable tracts in the manner designated by the Council. The use of
this method is not subject to the requirements specified in paragraph
(c)(2) of this section.
(d) The cropland method for reconstitution is the pro-rata
distribution of base acres to the resulting tracts in the same
proportion that each resulting tract bears to the cropland for the
parent tract. This method of division will be used if paragraphs (b) and
(c) of this section do not apply.
(e) The default method for reconstitution is the separation of
tracts from a farm with each tract maintaining the base acres attributed
to the tract when the reconstitution is initiated.
(f) Farm program payment yields calculated for the resulting farms
of a division may be increased or decreased if the county committee
determines the method used did not provide an equitable distribution
considering available land, cultural operations, and changes in the type
of farming conducted on the farm. Any increase in the farm program
payment yield on a resulting farm will be offset by a corresponding
decrease on another resulting farm of the division.
[80 FR 41997, July 16, 2015]
Sec. 718.207 Determining base acres when reconstitution is made
by combination.
(a) When two or more farms or tracts are combined for a year, that
year's base acres, with respect to the combined farm or tract, as
required by applicable program regulations, will not be greater than the
sum of the base acres for each of the farms or tracts comprising the
combination, subject to the provisions of Sec. 718.204.
(b) [Reserved]
[80 FR 41998, July 16, 2015]
Subpart D_Equitable Relief From Ineligibility
Source: 67 FR 66307, Oct. 31, 2002, unless otherwise noted.
Sec. 718.301 Applicability.
(a) This subpart is applicable to programs administered by the Farm
Service Agency under chapters VII and XIV of this title, except for an
agricultural credit program carried out under the Consolidated Farm and
Rural Development Act (7 U.S.C. 1921 et seq.), as amended.
Administration of this subpart shall be under the supervision of the
Deputy Administrator, except that such authority shall not limit the
exercise of authority allowed State Executive Directors of the Farm
Service agency as provided for in Sec. 718.307.
(b) Section 718.306 does not apply to a function performed under
either section 376 of the Consolidated Farm and Rural Development Act (7
U.S.C. 1921 et seq.), or a conservation program administered by the
Natural Resources Conservation Service of the United States Department
of Agriculture.
(c) The relief provisions of this part cannot be used to extend a
benefit or assistance not otherwise available under law or not otherwise
available to others who have satisfied or complied with every
eligibility or compliance requirement of the provisions of law or
regulations governing the program benefit or assistance.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
Sec. 718.302 Definitions and abbreviations.
In addition to the definitions provided in Sec. 718.2 of this part,
the following terms apply to this subpart:
Covered program means a program specified in Sec. 718.301 of this
subpart.
FSA means the Farm Service Agency of the United States Department of
Agriculture.
OGC means the Office of the General Counsel of the United States
Department of Agriculture.
SED means, for activities within a particular state, the State
Executive Director of the United States Department of Agriculture, FSA,
for that state.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
[[Page 48]]
Sec. 718.303 Reliance on incorrect actions or information.
(a) Notwithstanding any other law, if an action or inaction by a
participant is based upon good faith reliance on the action or advice of
an authorized representative of an FSA county or State committee, and
that action or inaction results in the participant's noncompliance with
the requirements of a covered program that is to the detriment of the
participant, then that action or inaction still may be approved by the
Deputy Administrator as meeting the requirements of the covered program,
and benefits may be extended or payments made in as specified in Sec.
718.305.
(b) This section applies only to a participant who:
(1) Relied in good faith upon the action of, or information provided
by, an FSA county or State committee or an authorized representative of
such committee regarding a covered program;
(2) Acted, or failed to act, as a result of the FSA action or
information; and
(3) Was determined to be not in compliance with the requirements of
that covered program.
(c) This section does not apply to cases where the participant had
sufficient reason to know that the action or information upon which they
relied was improper or erroneous or where the participant acted in
reliance on their own misunderstanding or misinterpretation of program
provisions, notices or information.
[80 FR 41998, July 16, 2015]
Sec. 718.304 Failure to fully comply.
(a) When the failure of a participant to fully comply with the terms
and conditions of a covered program precludes the providing of payments
or benefits, relief may be authorized as specified in Sec. 718.305 if
the participant made a good faith effort to comply fully with the
requirements of the covered program.
(b) This section only applies to participants who are determined by
FSA to have made a good faith effort to comply fully with the terms and
conditions of the covered program and have performed substantial actions
required for program eligibility.
[80 FR 41998, July 16, 2015]
Sec. 718.305 Forms of relief.
(a) The Administrator of FSA, Executive Vice President of CCC, or
their designee, may authorize a participant in a covered program to:
(1) Retain loans, payments, or other benefits received under the
covered program;
(2) Continue to receive loans, payments, and other benefits under
the covered program;
(3) Continue to participate, in whole or in part, under any contract
executed under the covered program;
(4) In the case of a conservation program, re-enroll all or part of
the land covered by the program; and
(5) Receive such other equitable relief as determined to be
appropriate.
(b) As a condition of receiving relief under this subpart, the
participant may be required to remedy their failure to meet the program
requirement, or mitigate its affects.
Sec. 718.306 Finality.
(a) A determination by an FSA State or county committee (or employee
of such committee) becomes final on an application for benefits and
binding 90 days from the date the application for benefits has been
filed, and supporting documentation required to be supplied by the
producer as a condition for eligibility for the particular program has
been filed, unless any of the following exceptions exist:
(1) The participant has requested an administrative review of the
determination in accordance with part 780 of this chapter;
(2) The determination was in any way based on erroneous, innocent,
or purposeful misrepresentation; false statement; fraud; or willful
misconduct by or on behalf of the participant;
(3) The determination was modified by the Administrator, FSA, or in
the case of CCC programs conducted under Chapter XIV of this title, the
Executive Vice President, CCC; or
(4) The participant knew or had reason to know that the
determination was erroneous.
(b) Should an erroneous determination become final under the
provisions of this section, the erroneous decision will be corrected
according to paragraph (c) of this section.
[[Page 49]]
(1) If, as a result of the erroneous decision, payment was issued,
no action will be taken by FSA, CCC, or a State or county committee to
recover unearned payment amounts unless one or more of the exceptions in
paragraph (a) of this section applies;
(2) If payment was not issued before the error was discovered, the
payment will not be issued. FSA and CCC are under no obligation to issue
payments or render decisions that are contrary to law or regulation.
(c) FSA and CCC will modify and correct determinations when errors
are discovered. As specified in paragraph (b) of this section, FSA or
CCC may be precluded from recovering unearned payments that issued as a
result of the erroneous decision. FSA or CCC's inability to recover or
demand refunds of unearned amounts as specified in paragraph (b) will
only be effective through the year in which the error was found and
communicated to the participant.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
Sec. 718.307 Special relief approval authority for State Executive
Directors.
(a) General nature of the special authority. Notwithstanding
provisions in this subpart providing supervision and relief authority to
other officials, an SED, after consultation with and approval from OGC
but without further review by other officials (other than the Secretary)
may grant relief to a participant under the provisions of Sec. Sec.
718.303 through 718.305 as if the SED were the final arbiter within the
agency of such matters so long as:
(1) The program matter with respect to which the relief is sought is
a program matter in a covered program which is operated within the State
under the control of the SED;
(2) The total amount of relief which will be provided to the
participant (that is, to the individual or entity that applies for the
relief) by that SED under this special authority for errors during that
year is less than $20,000 (including in that calculation, any loan
amount or other benefit of any kind payable for that year and any other
year);
(3) The total amount of such relief which has been previously
provided to the participant using this special authority for errors, as
calculated above, is not more than $5,000;
(4) The total amount of loans, payments, and benefits of any kind
for which relief is provided to similarly situated participants by an
SED for errors for any year under the authority provided in this
section, as calculated above, is not more than $1,000,000.
(b) Report of the exercise of the power. A grant of relief shall be
considered to be under this section and subject to the special finality
provided in this section only if the SED grants the relief in writing
when granting the relief to the party who will receive the benefit of
such relief and only if, in that document, the SED declares that they
are exercising that power. The SED must report the exercise of that
power to the Deputy Administrator so that a full accounting may be made
in keeping with the limitations of this section. Absent such a report,
relief will not be considered to have been made under this section.
(c) Additional limits on the authority. The authority provided under
this section does not extend to:
(1) The administration of payment limitations under part 1400 of
this chapter (Sec. Sec. 1001 to 1001F of 7 U.S.C. 1308 et seq.);
(2) The administration of payment limitations under a conservation
program administered by the Secretary; or
(3) Highly erodible land and wetland conservation requirements under
subtitles B or C of Title XII of the Food Security Act of 1985 (16
U.S.C. 3811 et seq.) as administered under 7 CFR part 12.
(d) Relief may not be provided by the SED under this section until a
written opinion or written acknowledgment is obtained from OGC that
grounds exist for determination that requirements for granting relief
under Sec. 718.303 or Sec. 718.304 have been met, that the form of
relief is authorized under Sec. 718.305, and that the granting of the
relief is within the lawful authority of the SED.
(e) Relation to other authorities. The authority provided under this
section
[[Page 50]]
is in addition to any other applicable authority that may allow relief.
[67 FR 66307, Oct. 31, 2002, as amended at 80 FR 41998, July 16, 2015]
[[Page 51]]
SUBCHAPTER C_REGULATIONS FOR WAREHOUSES
PART 735_REGULATIONS FOR THE UNITED STATES WAREHOUSE ACT--
Table of Contents
Subpart A_General Provisions
Sec.
735.1 Applicability.
735.2 Administration.
735.3 Definitions.
735.4 Fees.
735.5 Penalties.
735.6 Suspension, revocation and liquidation.
735.7 Return of suspended or revoked certificates of licensing or
certificates of authorization.
735.8 Appeals.
735.9 Dispute resolution and arbitration of private parties.
735.10 Posting of certificates of licensing, certificates of
authorization or other USWA documents.
735.11 Lost or destroyed certificates of licensing, authorization or
agreements.
735.12 Safe keeping of records.
735.13 Information of violations.
735.14 Bonding and other financial assurance requirements.
Subpart B_Warehouse Licensing
735.100 Application.
735.101 Financial records and reporting requirements.
735.102 Financial assurance requirements.
735.103 Amendments to license.
735.104 Insurance requirements.
735.105 Care of agricultural products.
735.106 Excess storage and transferring of agricultural products.
735.107 Warehouse charges and tariffs.
735.108 Inspections and examinations of warehouses.
735.109 Disaster loss to be reported.
735.110 Conditions for delivery of agricultural products.
735.111 Fair treatment.
735.112 Terminal and futures contract markets
Subpart C_Inspectors, Samplers, Classifiers, and Weighers
735.200 Service licenses.
735.201 Agricultural product certificates; format.
735.202 Standards of grades for other agricultural products.
Subpart D_Warehouse Receipts
735.300 Warehouse receipt requirements.
735.301 Notification requirements.
735.302 Paper warehouse receipts.
735.303 Electronic warehouse receipts.
Subpart E_Electronic Providers
735.400 Administration.
735.401 Electronic warehouse receipt and USWA electronic document
providers.
735.402 Providers of other electronic documents.
735.403 Audits.
735.404 Schedule of charges and rates.
Authority: 7 U.S.C. 241 et seq.
Source: 67 FR 50763, Aug. 5, 2002, unless otherwise noted.
Subpart A_General Provisions
Sec. 735.1 Applicability.
(a) The regulations of this part set forth the terms and conditions
under which the Secretary of Agriculture through the Farm Service Agency
(FSA) will administer the United States Warehouse Act (USWA or the Act)
and sets forth the standards and the terms and conditions a participant
must meet for eligibility to act under the USWA. The extent the
provisions of this part are more restrictive, or more lenient, with
respect to the same activities governed by State law, the provisions of
this part shall prevail.
(b) Additional terms and conditions may be set forth in applicable
licensing agreements, provider agreements and other documents.
(c) Compliance with State laws relating to the warehousing, grading,
weighing, storing, merchandising or other similar activities is not
required with respect to activities engaged in by a warehouse operator
in a warehouse subject to a license issued in accordance with this part.
Sec. 735.2 Administration.
(a) FSA will administer all provisions and activities regulated
under the Act under the general direction and supervision of the FSA's
Deputy Administrator, Commodity Operations (DACO), or a designee.
(b) DACO may waive or modify the licensing or authorization
requirements or deadlines in cases where lateness or
[[Page 52]]
failure to meet such requirements does not adversely affect the
licensing or authorizations operated under the Act.
(c) DACO will provide affected licensees or authorized providers
with changes to their licensing or provider agreements before the
effective date.
(d) Licensing and authorization agreement updates will be available
at:
(1) DACO's USWA website, and
(2) The following address: Deputy Administrator, Commodity
Operations, Farm Service Agency, United States Department of
Agriculture, STOP 0550, 1400 Independence Avenue, SW, Washington, DC
20250-0550.
Sec. 735.3 Definitions.
Words used in this part will be applicable to the activities
authorized by this part and will be used in all aspects of administering
the Act.
Access means the ability, when authorized, to read, change, and
transfer warehouse receipts or other applicable document information
retained in a central filing system.
Agricultural product means an agriculturally-produced product stored
or handled for the purposes of interstate or foreign commerce, including
a processed product of such agricultural product, as determined by DACO.
Central filing system (CFS) means an electronic system operated and
maintained by a provider, as a disinterested third party, authorized by
DACO where information relating to warehouse receipts, USWA documents
and other electronic documents is recorded and maintained in a
confidential and secure fashion independent of any outside influence or
bias in action or appearance.
Certificate means a USWA document that bears specific assurances
under the Act or warrants a person to operate or perform in a certain
manner and sets forth specific responsibilities, rights, and privileges
granted to the person under the Act.
Control of the facility means ultimate responsibility for the
operation and integrity of a facility by ownership, lease, or operating
agreement.
Department means the Department of Agriculture.
Electronic document means any document that is generated, sent,
received, or stored by electronic, optical, or similar means, including,
but not limited to, electronic data interchange, advanced communication
methods, electronic mail, telegram, telex, or telecopy.
Electronic warehouse receipt (EWR) means a warehouse receipt that is
authorized by DACO to be issued or transmitted under the Act in the form
of an electronic document.
Examiner means an individual designated by DACO for the purpose of
examining warehouses or for any other activities authorized under the
Act.
Financial assurance means the surety or other financial obligation
authorized by DACO that is a condition of receiving a license or
authorization under the Act.
Force majeure means severe weather conditions, fire, explosion,
flood, earthquake, insurrection, riot, strike, labor dispute, act of
civil or military, non-availability of transportation facilities, or any
other cause beyond the control of the warehouse operator or provider
that renders performance impossible.
Holder means a person that has possession in fact or by operation of
law of a warehouse receipt, USWA electronic document, or any electronic
document.
License means a license issued under the Act by DACO.
Licensing agreement means the document and any amendment or addenda
to such agreement executed by the warehouse operator and FSA specifying
licensing terms and conditions specific to the warehouse operator and
the agricultural product licensed to be stored.
Non-storage agricultural product means an agricultural product
received temporarily into a warehouse for conditioning, transferring or
assembling for shipment, or lots of an agricultural product moving
through a warehouse for current merchandising or milling use, against
which no warehouse receipts are issued and no storage charges assessed.
Official Standards of the United States means the standards of the
quality or condition for an agricultural product, fixed and established
under (7 U.S.C. 51) the United States Cotton Standards Act, (7 U.S.C.
71) the United States
[[Page 53]]
Grain Standards Act, (7 U.S.C. 1622) the Agricultural Marketing Act of
1946, or other applicable official United States Standards.
Other electronic documents (OED) means those electronic documents,
other than an EWR or USWA electronic document, that may be issued or
transferred, related to the shipment, payment or financing of
agricultural products that DACO has authorized for inclusion in a
provider's CFS.
Person means a person as set forth in 1 U.S.C. 1, a State; or a
political subdivision of a State.
Provider means a person authorized by DACO, as a disinterested third
party, which maintains one or more confidential and secure electronic
systems independent of any outside influence or bias in action or
appearance.
Provider agreement means the document and any amendment or addenda
to such agreement executed by the provider and FSA that sets forth the
provider's responsibilities concerning the provider's operation or
maintenance of a CFS.
Receipt means a warehouse receipt issued in accordance with the Act,
including an electronic warehouse receipt.
Schedule of charges means the tariff or uniform rate or amount
charged by an authorized person for specific services offered or
rendered under the Act.
Schedule of fees means the fees charged and assessed by FSA for
licensing, provider agreements or services furnished under the Act to
help defray the costs of administering the Act, and as such are shown in
a schedule of fees attached to the licensing or provider agreement.
Service license means the document and any amendment to such
document, issued under the Act by DACO to individuals certified
competent by the licensed warehouse operator to perform inspection,
sampling, grading classifying, or weighing services according to
established standards and procedures, set forth in Sec. 735.202, at the
specific warehouse license.
Stored agricultural products means all agricultural products
received into, stored within, or delivered out of the warehouse that are
not classified as a non-storage agricultural product under this part.
User means a person that uses a provider's CFS.
USWA electronic document means a USWA electronic document initiated
by DACO to be issued, transferred or transmitted that is not identified
as an EWR or OED in the appropriate licensing or provider agreement or
as determined by DACO.
Warehouse means a structure or other authorized storage facility, as
determined by DACO, in which any agricultural product may be stored or
handled for the purpose of interstate or foreign commerce.
Warehouse capacity means the maximum quantity of an agricultural
product that the warehouse will accommodate when stored in a manner
customary to the warehouse as determined by DACO.
Warehouse operator means a person lawfully engaged in the business
of storing or handling agricultural products.
Warehousing activities and practices means any legal, operational,
managerial or financial duty that a warehouse operator has regarding an
agricultural product.
Sec. 735.4 Fees.
(a) FSA will assess persons covered by the Act fees to cover the
costs of administering the Act.
(b) Warehouse operators, licensees, applicants, or providers must
pay:
(1) An annual fee as provided in the applicable licensing or
provider agreement; and
(2) Fees that FSA assesses for specific services, examinations and
audits, or as provided in the applicable licensing or provider
agreement.
(c) The schedule of fees showing the current fees or any annual fee
changes will be provided as an addendum to the applicable licensing or
provider agreement or/and:
(1) Will be available at DACO's USWA Web site, or
(2) May be requested at the following address: Deputy Administrator,
Commodity Operations, Farm Service Agency, United States Department of
[[Page 54]]
Agriculture, STOP 0550, 1400 Independence Avenue, SW., Washington, DC
20250-0550.
(d) At the sole discretion of DACO, these fees may be waived.
Sec. 735.5 Penalties.
If a person fails to comply with any requirement of the Act, the
regulations set forth in this part or any applicable licensing or
provider agreement, DACO may assess, after an opportunity for a hearing
as provided in Sec. 735.8, a civil penalty:
(a) Of not more than the amount specified in Sec. 3.91(b)(10)(i) of
this title per violation, if an agricultural product is not involved in
the violation; or
(b) Of not more than 100 percent of the value of the agricultural
product, if an agricultural product is involved in the violation.
[67 FR 50763, Aug. 5, 2002, as amended at 75 FR 17560, Apr. 7, 2010]
Sec. 735.6 Suspension, revocation and liquidation.
(a) DACO may, after an opportunity for a hearing as provided in
Sec. 735.8, suspend, revoke or liquidate any license or agreement
issued under the Act, for any violation of or failure to comply with any
provision of the Act, regulations or any applicable licensing or
provider agreement.
(b) The reasons for a suspension, revocation or liquidation under
this part include, but are not limited to:
(1) Failure to perform licensed or authorized services as provided
in this part or in the applicable licensing or provider agreement;
(2) Failure to maintain minimum financial requirements as provided
in the applicable licensing or provider agreement;
(3) Failure to submit a proper annual financial statement within the
established time period as provided in the applicable licensing or
provider agreement.
(4) Failure to maintain control of the warehouse or provider system.
(5) The warehouse operator or provider requests closure,
cancellation or liquidation. and
(6) Commission of fraud against FSA, any depositor, EWR or OED
holder or user, or any other function or operation under this part.
(c) FSA retains USWA's full authority over a warehouse operator or
provider for one year after such license revocation or provider
agreement termination or until satisfaction of any claims filed against
such warehouse operator or provider are resolved, whichever is later.
(d) Upon DACO's determination that continued operation of a
warehouse by a warehouse operator or an electronic provider system by a
provider is likely to result in probable loss of assets to storage
depositors, or loss of data integrity to EWR or OED holders and users.
DACO may immediately suspend, close, or take control and begin an
orderly liquidation of such warehouse inventory or provider system data
as provided in this part or in the applicable licensing or provider
agreement.
(e) Any disputes involving probable loss of assets to storage
depositors, or loss of data integrity to EWR or OED holders and users
will be determined by DACO for the benefit of the depositors, or EWR or
OED holders and users and such determinations shall be final.
Sec. 735.7 Return of suspended or revoked certificates of licensing
or certificates of authorization.
(a) When a license issued to a warehouse operator or service license
ends or is suspended or revoked by DACO, such certificates of licensing
and applicable licensing agreement and certificates of authorization
must be immediately surrendered and returned to DACO.
(b) When an agreement with a provider ends or is suspended or
revoked by DACO, such certificates of authorization and applicable
provider agreement must be immediately surrendered to DACO
Sec. 735.8 Appeals.
(a) Any person who is subject to an adverse determination made under
the Act may appeal the determination by filing a written request with
DACO at the following address: Deputy Administrator, Commodity
Operations, Farm Service Agency, United States Department of
Agriculture, STOP 0550, 1400
[[Page 55]]
Independence Avenue, SW., Washington, DC 20250-0550.
(b) Any person who believes that they have been adversely affected
by a determination under this part must seek review by DACO within
twenty-eight calendar days of such determination, unless provided with
notice by DACO of a different deadline.
(c) The appeal process set forth in this part is applicable to all
licensees and providers under any provision of the Act, regulations or
any applicable licensing agreement as follows:
(1) DACO will notify the person in writing of the nature of the
suspension, revocation or liquidation action;
(2) The person must notify DACO of any appeal of its action within
twenty-eight calendar days;
(3) The appeal and request must state whether:
(i) A hearing is requested,
(ii) The person will appear in person at such hearing, or
(iii) Such hearing will be held by telephone;
(4) DACO will provide the person a written acknowledgment of their
request to pursue an appeal;
(5) When a person requests an appeal and does not request a hearing
DACO will allow that person:
(i) To submit in writing the reasons why they believe DACO's
determination to be in error,
(ii) Twenty-eight calendar days from the receipt of the
acknowledgment to file any statements and documents in support of their
appeal, unless provided with notice by DACO of a different deadline, and
(iii) An additional fourteen calendar days to respond to any new
issues raised by DACO in response to the person's initial submission,
unless provided with notice by DACO of a different deadline;
(6) If the person requests to pursue an appeal and requests a
hearing, DACO will:
(i) Notify the person of the date of the hearing,
(ii) Determine the location of the hearing, when the person asks to
appear in person,
(iii) Notify the person of the location of the hearing,
(iv) Afford the person twenty-eight calendar days from the receipt
of the notification of the scheduling of the hearing to submit any
statements and documents in support of the appeal, unless provided with
notice by DACO of a different deadline, and
(v) Allow the person an additional fourteen calendar days from the
date of the hearing to submit any additional material, unless provided
with notice by DACO of a different deadline;
(7) Determinations of DACO will be final and no further appeal
within USDA will be available except as may be specified in the final
determination of DACO; and
(8) A person may not initiate an action in any court of competent
jurisdiction concerning a determination made under the Act prior to the
exhaustion of the appeal process set forth in this section.
Sec. 735.9 Dispute resolution and arbitration of private parties.
(a) A person may initiate legal action in any court of competent
jurisdiction concerning a claim for noncompliance or an unresolved
dispute with respect to activities authorized under the Act.
(b) Any claim for noncompliance or an unresolved dispute between a
warehouse operator or provider and another party with respect to
activities authorized under the Act may be resolved by the parties
through mutually agreed-upon arbitration procedures or as may be
prescribed in the applicable licensing or provider agreement. No
arbitration determination or award will affect DACO's authority under
the Act.
(c) In no case will USDA provide assistance or representation to
parties involved in an arbitration proceeding arising with respect to
activities authorized under the Act.
Sec. 735.10 Posting of certificates of licensing, certificates
of authorization or other USWA documents.
(a) The warehouse operator must post, in a conspicuous place in the
principal place where warehouse receipts are issued, any applicable
certificate furnished by DACO that the warehouse operator is an
authorized licensee under the Act.
[[Page 56]]
(b) Immediately upon receipt of their certificate of service
licensing or any modification or extension thereof under the Act, the
licensee and warehouse operator must jointly post the same, and
thereafter, except as otherwise provided in the regulations in this part
or as prescribed in the applicable licensing agreement, keep such
certificate of licensing conspicuously posted in the office where all or
most of the services are done, or in such place as may be designated by
DACO.
(c) The provider must post, in a conspicuous place in the principal
place of business, any applicable certificate of authorization furnished
by DACO that the provider is authorized to offer and provide specific
services under the Act.
Sec. 735.11 Lost or destroyed certificates of licensing,
authorization or agreements.
FSA will replace lost or destroyed certificates of licensing,
certificate of authorization or applicable agreement upon satisfactory
proof of loss or destruction. FSA will mark such certificates or
agreements as duplicates.
Sec. 735.12 Safe keeping of records.
Each warehouse operator or provider must take necessary precautions
to safeguard all records, either paper or electronic format, from
destruction.
Sec. 735.13 Information of violations.
Every person licensed or authorized under the Act must immediately
furnish DACO any information they may have indicating that any provision
of the Act or the regulations in this part has been violated.
Sec. 735.14 Bonding and other financial assurance requirements.
(a) As a condition of receiving a license or authorization under the
Act, the person applying for the license or authorization must execute
and file with DACO a bond or provide such other financial assurance as
DACO determines appropriate to secure the person's compliance with the
Act.
(b) Such bond or assurance must be for a period of not less than one
year and in such amount as required by DACO.
(c) Failure to provide for, or renew, a bond or a financial
assurance instrument will result in the immediate and automatic
revocation of the warehouse operator's license or provider's agreement.
(d) If DACO determines that a previously accepted bond or other
financial assurance is insufficient, DACO may immediately suspend or
revoke the license or authorization covered by the bond or other
financial assurance if the person that filed the bond or other financial
assurance does not provide such additional bond or other financial
assurance as DACO determines appropriate.
(e) To qualify as a suitable bond or other financial assurance, the
entity issuing the bond or other financial assurance must be subject to
service of process in lawsuits or legal actions on the bond or other
financial assurance in the State in which the warehouse is located.
Subpart B_Warehouse Licensing
Sec. 735.100 Application.
(a) An applicant for a license must submit to DACO information and
documents determined by DACO to be sufficient to conclude that the
applicant can comply with the provisions of the Act. Such documents must
include a current review or an audit-level financial statement prepared
according to generally accepted accounting standards as defined by the
American Institute of Certified Public Accountants. For any entity that
is not an individual, a document that establishes proof of the existence
of the entity, such as:
(1) For a partnership, an executed partnership agreement; and
(2) For a corporation:
(i) Articles of incorporation certified by the Secretary of State of
the applicable State of incorporation;
(ii) Bylaws; and
(iii) Permits to do business; and
(3) For a limited partnership, an executed limited partnership
agreement; and
(4) For a limited liability company:
(i) Articles of organization or similar documents; and
[[Page 57]]
(ii) Operating agreement or similar agreement.
(b) The warehouse facilities of an operator licensed under the Act
must, as determined by DACO, be:
(1) Physically and operationally suitable for proper storage of the
applicable agricultural product or agricultural products specified in
the license;
(2) Operated according to generally accepted warehousing activities
and practices in the industry for the applicable agricultural product or
agricultural products stored in the facility; and
(3) Subject to the warehouse operator's control of the facility
including all contiguous storage space with respect to such facilities.
(c) As specified in individual licensing agreements, a warehouse
operator must:
(1) Meet the basic financial requirements determined by DACO; and
(2) Meet the net worth requirements determined by DACO;
(d) In order to obtain a license, the warehouse operator must
correct any exceptions made by the warehouse examiner at the time of the
original warehouse examination.
(e) DACO may issue a license for the storage of two or more
agricultural products in a single warehouse as provided in the
applicable licensing agreements. The amount of the bond or financial
assurance, net worth, and inspection and license fees will be determined
by DACO in accordance with the licensing agreements applicable to the
specific agricultural product, based upon the warehouses' total capacity
for storing such product, that would require:
(1) The largest bond or financial assurance;
(2) The greatest amount of net worth; and
(3) The greatest amount of fees.
Sec. 735.101 Financial records and reporting requirements.
(a) Warehouse operators must maintain complete, accurate, and
current financial records that must be available to DACO for review or
audit at DACO's request as may be prescribed in the applicable licensing
agreement.
(b) Warehouse operators must, annually, present a financial
statement as may be prescribed in the applicable licensing agreement to
DACO.
Sec. 735.102 Financial assurance requirements.
(a) Warehouse operators must file with DACO financial assurances
approved by DACO consisting of:
(1) A warehouse operator's bond; or
(2) Obligations that are unconditionally guaranteed as to both
interest and principal by the United States, in a sum equal at their par
value to the amount of the bond otherwise required to be furnished,
together with an irrevocable power of attorney authorizing DACO to
collect, sell, assign and transfer such obligations in case of any
default in the performance of any of the conditions required in the
licensing agreement; or
(3) An irrevocable letter of credit issued in the favor of DACO with
a term of not less than two years; or
(4) A certificate of participation in, and coverage by, an indemnity
or insurance fund as approved by DACO, established and maintained by a
State, backed by the full faith and credit of the applicable State,
which guarantees depositors of the licensed warehouse full
indemnification for the breach of any obligation of the licensed
warehouse operator under the terms of the Act. If a warehouse operator
files a bond or financial assurance in the form of a certification of
participation in an indemnity or insurance fund, the certification may
only be used to satisfy any deficiencies in assets above the minimum net
worth requirement as prescribed in the applicable licensing agreement. A
certificate of participation and coverage in this fund must be furnished
to DACO annually; or
(5) Other alternative instruments and forms of financial assurance
approved by DACO as may be prescribed in the applicable licensing
agreement.
(b) The warehouse operator may not withdraw obligations required
under this section until one year after license termination or until
satisfaction of any claims against the obligations, whichever is later.
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Sec. 735.103 Amendments to license.
FSA will issue an amended license upon:
(a) Receipt of forms prescribed and furnished by DACO outlining the
requested changes to the license;
(b) Payment of applicable licensing and examination fees;
(c) Receipt of bonding or other financial assurance if required in
the applicable licensing agreement; and
(d) Receipt of a report on the examination of the proposed
facilities pending inclusion or exclusion, if determined necessary by
DACO.
Sec. 735.104 Insurance requirements.
Each warehouse operator must comply fully with the terms of
insurance policies or contracts covering their licensed warehouse and
all products stored therein, and must not commit any acts, nor permit
others to do anything, that might impair or invalidate such insurance.
Sec. 735.105 Care of agricultural products.
Each warehouse operator must at all times, including during any
period of suspension of their license, exercise such care in regard to
stored and non-storage agricultural products in their custody as
required in the applicable licensing agreement.
Sec. 735.106 Excess storage and transferring of agricultural
products.
(a) If at any time a warehouse operator stores an agricultural
product in a warehouse subject to a license issued under the Act in
excess of the warehouse capacity for which it is licensed, such
warehouse operator must immediately notify DACO of such excess storage
and the reason for the storage.
(b) A warehouse operator who desires to transfer stored agricultural
products to another warehouse may do so either by physical movement, by
other methods as may be provided in the applicable licensing agreement,
or as authorized by DACO.
Sec. 735.107 Warehouse charges and tariffs.
(a) A warehouse operator must not make any unreasonable or
exorbitant charge for services rendered.
(b) A warehouse operator must follow the terms and conditions for
each new or revised warehouse tariff or schedule of charges and rates as
prescribed in the applicable licensing agreement.
Sec. 735.108 Inspections and examinations of warehouses.
(a) Warehouse operators must permit any agent of the Department to
enter and inspect or examine, on any business day during the usual hours
of business, any licensed warehouse, the offices of the warehouse
operator, the books, records, papers, and accounts.
(b) Routine and special inspections and examinations will be
unannounced.
(c) Warehouse operators must provide safe access to all storage
facilities.
(d) Warehouse operators must inform any agent of the Department,
upon arrival, of any hazard.
(e) Agents of the Department must accomplish inspections and
examinations of warehouses in a manner that is efficient and cost-
effective without jeopardizing any inspection and examination integrity.
Sec. 735.109 Disaster loss to be reported.
If at any time a disaster or loss occurs at or within any licensed
warehouse, the warehouse operator must report immediately the occurrence
of the disaster or loss and the extent of damage, to DACO.
Sec. 735.110 Conditions for delivery of agricultural products.
(a) In the absence of a lawful excuse, a warehouse operator will,
without unnecessary delay, deliver the agricultural product stored or
handled in the warehouse on a demand made by:
(1) The holder of the warehouse receipt for the agricultural
product; or
(2) The person that deposited the agricultural product, if no
warehouse receipt has been issued.
(b) Prior to delivery of the agricultural product, payment of the
accrued charges associated with the storage or handling of the
agricultural product, including satisfaction of the warehouse operator's
lien, must be made if requested by the warehouse operator.
(c) When the holder of a warehouse receipt requests delivery of an
agricultural product covered by the warehouse
[[Page 59]]
receipt, the holder must surrender the warehouse receipt to the
warehouse operator before obtaining the agricultural product.
(d) A warehouse operator must cancel each warehouse receipt
surrendered to the warehouse operator upon the delivery of the
agricultural product for which the warehouse receipt was issued and in
accordance with the applicable licensing agreement.
(e) For the purpose of this part, unless prevented from doing so by
force majeure, a warehouse operator will deliver or ship such
agricultural products stored or handled in their warehouse as prescribed
in the applicable licensing agreement.
Sec. 735.111 Fair treatment.
(a) Contingent upon the capacity of a warehouse, a warehouse
operator will deal in a fair and reasonable manner with persons storing,
or seeking to store, an agricultural product in the warehouse if the
agricultural product is:
(1) Of the kind, type, and quality customarily stored or handled in
the area in which the warehouse is located;
(2) Tendered to the warehouse operator in a suitable condition for
warehousing; and
(3) Tendered in a manner that is consistent with the ordinary and
usual course of business.
(b) Nothing in this section will prohibit a warehouse operator from
entering into an agreement with a depositor of an agricultural product
to allocate available storage space.
Sec. 735.112 Terminal and futures contract markets.
(a) DACO may issue service licenses to weigh-masters or their
deputies to perform services relating to warehouse receipts that are
deliverable in satisfaction of futures contracts in such contract
markets or as may be prescribed in any applicable licensing agreement.
(b) DACO may authorize a registrar of warehouse receipts issued for
an agricultural product in a warehouse licensed under the Act that
operates in any terminal market or in any futures contract market the
official designated by officials of the State in which such market is
located if such individual is not:
(1) An owner or employee of the licensed warehouse;
(2) The owner of, or an employee of the owner of, such agricultural
product deposited in any such licensed warehouse; or
(3) As may be prescribed in any applicable licensing or provider
agreement.
Subpart C_Inspectors, Samplers, Classifiers, and Weighers
Sec. 735.200 Service licenses.
(a) FSA may issue to a person a license for:
(1) Inspection of any agricultural product stored or handled in a
warehouse subject to the Act;
(2) Sampling of such an agricultural product;
(3) Classification of such an agricultural product according to
condition, grade, or other class and certify the condition, grade, or
other class of the agricultural product;
(4) Weighing of such an agricultural product and certify the weight
of the agricultural product; or
(5) Performing two or more services specified in paragraphs (a)(1),
(a)(2), (a)(3) or (a)(4) of this section.
(b) Each person seeking a license to perform activities described in
this section must submit an application on forms furnished by DACO that
contain, at a minimum, the following information:
(1) The name, location and license number of the warehouses where
the applicant would perform such activities;
(2) A statement from the warehouse operator that the applicant is
competent and authorized to perform such activities at specific
locations; and
(3) Evidence that the applicant is competent to inspect, sample,
classify, according to grade or weigh the agricultural product.
(c) The warehouse operator will promptly notify DACO in writing of
any changes with respect to persons authorized to perform such
activities at the licensed warehouse.
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Sec. 735.201 Agricultural product certificates; format.
Each inspection, grade, class, weight or combination certificate
issued under the Act by a licensee to perform such services must be:
(a) In a format prescribed by DACO;
(b) Issued and maintained in a consecutive order; and
(c) As prescribed in the applicable licensing or provider agreement
and authorized by DACO.
Sec. 735.202 Standards of grades for other agricultural products.
Official Standards of the United States for any kind, class or grade
of an agricultural product to be inspected must be used if such
standards exist. Until Official Standards of the United States are fixed
and established for the kind of agricultural product to be inspected,
the kind, class and grade of the agricultural product must be stated,
subject to the approval of DACO. If such standards do not exist for such
an agricultural product, the following will be used:
(a) State standards established in the State in which the warehouse
is located,
(b) In the absence of any State standards, in accordance with the
standards, if any, adopted by the local board of trade, chamber of
commerce, or by the agricultural product trade generally in the locality
in which the warehouse is located, or
(c) In the absence of the standards set forth in paragraphs (a) and
(b) of this section, in accordance with any standards approved for the
purpose by DACO.
Subpart D_Warehouse Receipts
Sec. 735.300 Warehouse receipt requirements.
(a) Warehouse receipts may be:
(1) Negotiable or non-negotiable;
(2) For a single unit, multiple units, identity preserved or
commingled lot; and
(3) In a paper or electronic format that, besides complying with the
requirements of the Act, must be in a format as prescribed in the
applicable licensing or provider agreement and authorized by DACO.
(b) The warehouse operator must:
(1) At the request of a depositor of an agricultural product stored
or handled in a warehouse licensed under the Act, issue a warehouse
receipt to the depositor;
(2) Not issue a warehouse receipt for an agricultural product unless
the agricultural product is actually stored in their warehouse at the
time of issuance;
(3) Not issue a warehouse receipt until the quality, condition and
weight of such an agricultural product is ascertained by a licensed
inspector and weigher;
(4) Not directly or indirectly compel or attempt to compel the
depositor to request the issuance of a warehouse receipt omitting the
statement of quality or condition;
(5) Not issue an additional warehouse receipt under the Act for a
specific identity-preserved or commingled agricultural product lot (or
any portion thereof) if another warehouse receipt representing the same
specific identity-preserved or commingled lot of the agricultural
product is outstanding. No two warehouse receipts issued by a warehouse
operator may have the same warehouse receipt number or represent the
same agricultural product lot;
(6) When issuing a warehouse receipt and purposefully omitting any
information, notate the blank to show such intent;
(7) Not deliver any portion of an agricultural product for which
they have issued a negotiable warehouse receipt until the warehouse
receipt has been surrendered to them and canceled as prescribed in the
applicable licensing agreement;
(8) Not deliver more than 90% of the receipted quantity of an
agricultural product for which they have issued a non-negotiable
warehouse receipt until such warehouse receipt has been surrendered or
the depositor or the depositor's agent has provided a written order for
the agricultural product and the warehouse receipt surrendered upon
final delivery; and
(9) Deliver, upon proper presentation of a warehouse receipt for any
agricultural product, and payment or tender
[[Page 61]]
of all advances and charges, to the depositor or lawful holder of such
warehouse receipt the agricultural product of such identity, quantity,
grade and condition as set forth in such warehouse receipt.
(c) In the case of a lost or destroyed warehouse receipt, a new
warehouse receipt upon the same terms, subject to the same conditions,
and bearing on its face the number and the date of the original
warehouse receipt may be issued.
Sec. 735.301 Notification requirements.
Warehouse operators must file with DACO the name and genuine
signature of each person authorized to sign warehouse receipts for the
licensed warehouse operator, and will promptly notify DACO of any
changes with respect to persons authorized to sign.
Sec. 735.302 Paper warehouse receipts.
Paper warehouse receipts must be issued as follows:
(a) On distinctive paper specified by DACO;
(b) Printed by a printer authorized by DACO; and
(c) Issued, identified and maintained in a consecutive order.
Sec. 735.303 Electronic warehouse receipts.
(a) Warehouse operators issuing EWR under the Act may issue EWR's
for the agricultural product stored in their warehouse. Warehouse
operators issuing EWR's under the Act must:
(1) Only issue EWR's through one FSA-authorized provider annually;
(2) Inform DACO of the identity of their provider, when they are a
first time user of EWR's, 60 calendar days in advance of issuing an EWR
through that provider. DACO may waive or modify this 60-day requirement
as set forth in Sec. 735.2(b);
(3) Before issuing an EWR, request and receive from FSA a range of
consecutive warehouse receipt numbers that the warehouse will use
consecutively for issuing their EWR's;
(4) When using an authorized provider, issue and cancel all
warehouse receipts as EWR's;
(5) Cancel an EWR only when they are the holder of the warehouse
receipt;
(6) Be the holder of an EWR to correct information contained within
any required data field;
(7) Receive written authorization from FSA at least 30 calendar days
before changing providers. Upon authorization, they may request their
current provider to transfer their EWR data from its Central Filing
System (CFS) to the CFS of the authorized provider whom they select; and
(8) Notify all holders of EWR's by inclusion in the CFS at least 30
calendar days before changing providers, unless otherwise required or
allowed by FSA.
(b) An EWR establishes the same rights and obligations with respect
to an agricultural product as a paper warehouse receipt and possesses
the following attributes:
(1) The holder of an EWR will be entitled to the same rights and
privileges as the holder of a paper warehouse receipt.
(2) Only the current holder of the EWR may transfer the EWR to a new
holder.
(3) The identity of the holder must be confidential and included as
information for every EWR.
(4) Only one person may be designated as the holder of an EWR at any
one time.
(5) A warehouse operator may not issue an EWR on a specific
identity-preserved or commingled lot of agricultural product or any
portion thereof while another valid warehouse receipt representing the
same specific identity-preserved or commingled lot of agricultural
product remains not canceled. No two warehouse receipts issued by a
warehouse operator may have the same warehouse receipt number or
represent the same agricultural product lot.
(6) An EWR may only be issued to replace a paper warehouse receipt
if requested by the current holder of the paper warehouse receipt.
(7) Holders and warehouse operators may authorize any other user of
their provider or the provider itself to act on
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their behalf with respect to their activities with this provider. This
authorization must be in writing, and acknowledged and retained by the
warehouse operator and provider.
(c) A warehouse operator not licensed under the Act may, at the
option of the warehouse operator, issue EWRs in accordance with this
subpart, except this option does not apply to a warehouse operator that
is licensed under State law to store agricultural products in a
warehouse if the warehouse operator elects to issue an EWR under State
law.
Subpart E_Electronic Providers
Sec. 735.400 Administration.
This subpart sets forth the regulations under which DACO may
authorize one or more electronic systems under which:
(a) Electronic documents relating to the shipment, payment, and
financing of the sale of agricultural products may be issued or
transferred; or
(b) Electronic receipts may be issued and transferred.
Sec. 735.401 Electronic warehouse receipt and USWA electronic
document providers.
(a) To establish a USWA-authorized system to issue and transfer
EWR's and USWA electronic documents, each applicant must submit to DACO
information and documents determined by DACO to be sufficient to
determine that the applicant can comply with the provisions of the Act.
Each provider operating pursuant to this section must meet the following
requirements:
(1) Have and maintain a net worth as specified in the applicable
provider agreement;
(2) Maintain two insurance policies; one for ``errors and
omissions'' and another for ``fraud and dishonesty.'' Each policy's
minimum coverage and maximum deductible amounts and applicability of
other forms of financial assurances as set forth in Sec. 735.14 will be
prescribed in the applicable provider agreement. Each policy must
contain a clause requiring written notification to FSA 30 days prior to
cancellation or as prescribed by FSA;
(3) Submit a current review or an audit level financial statement
prepared according to generally accepted accounting standards as defined
by the American Institute of Certified Public Accountants;
(4) For any entity that is not an individual, a document that
establishes proof of the existence, such as:
(i) For a partnership, an executed partnership agreement; and
(ii) For a corporation:
(A) Articles of incorporation certified by the Secretary of State of
the applicable State of incorporation;
(B) Bylaws; and
(C) Permits to do business; and
(iii) For a limited partnership, an executed limited partnership
agreement; and
(iv) For a limited liability company:
(A) Articles of organization or similar documents; and
(B) Operating agreement or similar agreement.
(5) Meet any additional financial requirements as set forth in the
applicable provider agreement;
(6) Pay user fees annually to FSA, as set and announced annually by
FSA prior to April 1 of each calendar year; and
(7) Operate a CFS as a neutral third party in a confidential and
secure fashion independent of any outside influence or bias in action or
appearance.
(b) The provider agreement will contain, but not be limited to,
these basic elements:
(1) Scope of authority;
(2) Minimum document and warehouse receipt requirements;
(3) Liability;
(4) Transfer of records protocol;
(5) Records;
(6) Conflict of interest requirements;
(7) USDA common electronic information requirements;
(8) Financial requirements
(9) Terms of insurance policies or assurances;
(10) Provider's integrity statement;
(11) Security audits; and
(12) Submission, authorization, approval, use and retention of
documents.
(c) DACO may suspend or terminate a provider's agreement for cause
at any time.
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(1) Hearings and appeals will be conducted in accordance with
procedures as set forth in Sec. Sec. 735.6 and 735.8.
(2) Suspended or terminated providers may not execute any function
pertaining to USDA, USWA documents, or USWA or State EWR's during the
pendency of any appeal or subsequent to this appeal if the appeal is
denied, except as authorized by DACO.
(3) The provider or DACO may terminate the provider agreement
without cause solely by giving the other party written notice 60
calendar days prior to termination.
(d) Each provider agreement will be automatically renewed annually
on April 30th as long as the provider complies with the terms contained
in the provider agreement, the regulations in this subpart, and the Act.
Sec. 735.402 Providers of other electronic documents.
(a) To establish a USWA-authorized system to issue and transfer OED,
each applicant must submit to DACO information and documents determined
by DACO to be sufficient to determine that the applicant can comply with
the provisions of the Act. Each provider operating pursuant to this
section must meet the following requirements:
(1) Have and maintain a net worth as specified in the applicable
provider agreement;
(2) Maintain two insurance policies; one for 'errors and omissions'
and another for 'fraud and dishonesty'. Each policy's minimum coverage
and maximum deductible amounts and applicability of other forms of
financial assurances as set forth in Sec. 735.14 will be prescribed in
the applicable provider agreement. Each policy must contain a clause
requiring written notification to FSA 30 days prior to cancellation or
as prescribed by FSA;
(3) Submit a current review or an audit level financial statement
prepared according to generally accepted accounting standards as defined
by the American Institute of Certified Public Accountants;
(4) For any entity that is not an individual, a document that
establishes proof of the existence, such as:
(i) For a partnership, an executed partnership agreement; and
(ii) For a corporation:
(A) Articles of incorporation certified by the Secretary of State of
the applicable State of incorporation;
(B) Bylaws; and
(C) Permits to do business; and
(iii) For a limited partnership, an executed limited partnership
agreement; and
(iv) For a limited liability company:
(A) Articles of organization or similar documents; and
(B) Operating agreement or similar agreement.
(5) Meet any additional financial requirements as set forth in the
applicable provider agreement;
(6) Pay user fees annually to FSA, as set and announced annually by
FSA prior to April 1 of each calendar year; and
(7) Operate a CFS as a neutral third party in a confidential and
secure fashion independent of any outside influence or bias in action or
appearance.
(b) The provider agreement will contain, but not be limited to,
these basic elements:
(1) Scope of authority;
(2) Minimum document and warehouse receipt requirements;
(3) Liability;
(4) Transfer of records protocol;
(5) Records;
(6) Conflict of interest requirements;
(7) USDA common electronic information requirements;
(8) Financial requirements;
(9) Terms of insurance policies or assurances;
(10) Provider's integrity statement;
(11) Security audits; and
(12) Submission, authorization, approval, use and retention of
documents.
(c) DACO may suspend or terminate a provider's agreement for cause
at any time.
(1) Hearings and appeals will be conducted in accordance with
procedures as set forth in Sec. Sec. 735.6 and 735.8.
(2) Suspended or terminated providers may not execute any function
pertaining to USDA, USWA documents, USWA or State EWR's or OED's during
the pendency of any appeal or subsequent to this appeal if the appeal is
denied, except as authorized by DACO.
(d) Each provider agreement will be automatically renewed annually
on
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April 30th as long as the provider complies with the terms contained in
the provider agreement, the regulations in this subpart, and the Act.
(e) In addition to audits prescribed in this section the provider
must submit a copy of any audit, examination or investigative report
prepared by any Federal regulatory agency with respect to the provider
including agencies such as, but not limited to, the Comptroller of the
Currency, Department of the Treasury, the Federal Trade Commission, and
the Commodity Futures Trading Commission.
Sec. 735.403 Audits.
(a) No later than 120 calendar days following the end of the
provider's fiscal year, the provider authorized under Sec. Sec. 735.401
and 735.402 must submit to FSA an annual audit level financial statement
and an electronic data processing audit that meets the minimum
requirements as provided in the applicable provider agreement. The
electronic data processing audit will be used by DACO to evaluate
current computer operations, security, disaster recovery capabilities of
the system, and compatibility with other systems authorized by DACO.
(b) Each provider will grant the Department unlimited, free access
at any time to all records under the provider's control relating to
activities conducted under this part and as specified in the applicable
provider agreement.
Sec. 735.404 Schedule of charges and rates.
(a) A provider authorized under Sec. Sec. 735.401 or 735.402 must
furnish FSA with copies of its current schedule of charges and rates for
all services as they become effective.
(b) Charges and rates assessed any user by the provider must be in
effect for a minimum period of one year.
(c) Providers must furnish FSA and all users a 60-calendar day
advance notice of their intent to change any charges and rates.
PART 743 [RESERVED]
[[Page 65]]
SUBCHAPTER D_SPECIAL PROGRAMS
PART 750_SOIL BANK--Table of Contents
Editorial Note: Part 750 (formerly part 485 of title 6), published
at 21 FR 6289, Aug. 22, 1956, and redesignated at 26 FR 5788, June 29,
1961, is no longer carried in the Code of Federal Regulations. This
deletion does not relieve any person of any obligation or liability
incurred under these regulations, nor deprive any person of any rights
received or accrued under the provisions of this part. For Federal
Register citations affecting this part, see the ``List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985,'' published in seven
separate volumes.
PART 755_REIMBURSEMENT TRANSPORTATION COST PAYMENT PROGRAM FOR
GEOGRAPHICALLY DISADVANTAGED FARMERS AND RANCHERS--Table of Contents
Sec.
755.1 Administration.
755.2 Definitions.
755.3 Time and method of application.
755.4 Eligibility.
755.5 Proof of eligible reimbursement costs incurred.
755.6 Availability of funds.
755.7 Transportation rates.
755.8 Calculation of individual payments.
755.9 Misrepresentation and scheme or device.
755.10 Death, incompetence, or disappearance.
755.11 Maintaining records.
755.12 Refunds; joint and several liability.
755.13 Miscellaneous provisions and appeals.
Authority: 7 U.S.C. 8792.
Source: 75 FR 34340, June 17, 2010, unless otherwise noted.
Sec. 755.1 Administration.
(a) This part establishes the terms and conditions under which the
Reimbursement Transportation Cost Payment (RTCP) Program for
geographically disadvantaged farmers and ranchers will be administered.
(b) The RTCP Program will be administered under the general
supervision of the FSA Administrator, or a designee, and will be carried
out in the field by FSA State and county committees and FSA employees.
(c) FSA State and county committees, and representatives and
employees thereof, do not have the authority to modify or waive any of
the provisions of the regulations of this part, except as provided in
paragraph (e) of this section.
(d) The FSA State committee will take any action required by the
provisions of this part that has not been taken by the FSA county
committee. The FSA State committee will also:
(1) Correct or require an FSA county committee to correct any action
taken by the county committee that is not in compliance with the
provisions of this part.
(2) Require an FSA county committee to not take an action or
implement a decision that is not in compliance with the provisions of
this part.
(e) No provision or delegation of this part to an FSA State
committee or a county committee will preclude the FSA Administrator, or
a designee, from determining any question arising under the program or
from reversing or modifying any determination made by a State committee
or a county committee.
(f) The Deputy Administrator for Farm Programs, FSA, may waive or
modify program requirements of this part in cases where failure to meet
requirements does not adversely affect the operation of the program and
where the requirement is not statutorily mandated.
Sec. 755.2 Definitions.
The following definitions apply to this part. The definitions in
parts 718 and 1400 of this title also apply, except where they may
conflict with the definitions in this section.
Actual transportation rate means the transportation rate that
reflects the actual transportation costs incurred and can be determined
by supporting documentation.
Agricultural commodity means any agricultural commodity (including
horticulture, aquaculture, and floriculture), food, feed, fiber,
livestock (including elk, reindeer, bison, horses, or deer), or insects,
and any product thereof.
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Agricultural operation means a parcel or parcels of land; or body of
water applicable to aquaculture, whether contiguous or noncontiguous,
constituting a cohesive management unit for agricultural purposes. An
agricultural operation will be regarded as located in the county in
which the principal dwelling is situated, or if there is no dwelling
thereon, it will be regarded to be in the county in which the major
portion of the land or applicable body of water is located.
Application period means the period established by the Deputy
Administrator for geographically disadvantaged farmers and ranchers to
apply for program benefits.
County office or FSA county office means the FSA offices responsible
for administering FSA programs in a specific area, sometimes
encompassing more than one county, in a State.
Department or USDA means the U.S. Department of Agriculture.
Eligible reimbursement amount means the reported costs incurred to
transport an agricultural commodity or input used to produce an
agricultural commodity in an insular area, Alaska, or Hawaii, over a
distance of more than 30 miles. The amount is calculated by multiplying
the number of units of the reported transportation amount times the
applicable transportation fixed, set, or actual rate times the
applicable FY allowance (COLA).
Farm Service Agency or FSA means the Farm Service Agency of the
USDA.
Fiscal year or FY means the year beginning October 1 and ending the
following September 30. The fiscal year will be designated for this part
by year reference to the calendar year in which it ends. For example, FY
2010 is from October 1, 2009, through September 30, 2010 (inclusive).
Fixed transportation rate means the per unit transportation rate
determined by FSA to reflect the transportation cost applicable to an
agricultural commodity or input used to produce an agricultural
commodity in a particular region.
FY allowance (COLA) means the nonforeign area cost of living
allowance or post differential, as applicable, for that FY set by Office
of Personnel Management for Federal employees stationed in Alaska,
Hawaii, and other insular areas, as authorized by 5 U.S.C. 5941 and E.O.
10000 and specified in 5 CFR part 591, subpart B, appendices A and B.
Geographically disadvantaged farmer or rancher means a farmer or
rancher in an insular area, Alaska, or Hawaii.
Input transportation costs means those transportation costs of
inputs used to produce an agricultural commodity including, but not
limited to, air freight, ocean freight, and land freight of chemicals,
feed, fertilizer, fuel, seeds, plants, supplies, equipment parts, and
other inputs as determined by FSA.
Insular area means the Commonwealth of Puerto Rico; Guam; American
Samoa; the Commonwealth of the Northern Mariana Islands; the Federated
States of Micronesia; the Republic of the Marshall Islands; the Republic
of Palau; and the Virgin Islands of the United States.
Payment amount means the amount due a producer that is the sum of
all eligible reimbursement amounts, as calculated by FSA subject to the
availability of funds, and subject to an $8,000 cap per producer per FY.
Producer means any geographically disadvantaged farmer or rancher
who is an individual, group of individuals, partnership, corporation,
estate, trust, association, cooperative, or other business enterprise or
other legal entity, as defined in Sec. 1400.3 of this title, who is, or
whose members are, a citizen of or legal resident alien in the United
States, and who, as determined by the Secretary, shares in the risk of
producing an agricultural commodity in substantial commercial
quantities, and who is entitled to a share of the agricultural commodity
from the agricultural operation.
Reported transportation amount means the reported number of units
(such as pounds, bushels, pieces, or parts) applicable to an
agricultural commodity or input used to produce an agricultural
commodity, which is used in calculating the eligible reimbursement
amount.
Set transportation rate means the transportation rate established by
FSA for a commodity or input for which there is not a fixed
transportation rate
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or supporting documentation of the actual transportation rate.
United States means the 50 States of the United States of America,
the District of Columbia, the Commonwealths of Puerto Rico and the
Northern Mariana Islands, and any other territory or possession of the
United States.
Verifiable records means evidence that is used to substantiate the
amount of eligible reimbursements by geographically disadvantaged
farmers and ranchers in an agricultural operation that can be verified
by FSA through an independent source.
Sec. 755.3 Time and method of application.
(a) To be eligible for payment, producers must obtain and submit a
completed application for payment and meet other eligibility
requirements specified in this part. Producers may obtain an application
in person, by mail, or by facsimile from any county FSA office. In
addition, producers may download a copy of the application at http://
www.sc.egov.usda.gov.
(b) An application for payment must be submitted on a completed
application form. Applications and any other supporting documentation
must be submitted to the FSA county office serving the county where the
agricultural operation is located, but, in any case, must be received by
the FSA county office by the close of business on the last day of the
application period established by the Deputy Administrator.
(c) All producers who incurred transportation costs for eligible
reimbursements and who share in the risk of an agricultural operation
must certify to the information on the application before the
application will be considered complete. FSA may require the producer to
provide documentation to support all verifiable records.
(d) Each producer requesting payment under this part must certify to
the accuracy and truthfulness of the information provided in their
application and any supporting documentation. All information provided
is subject to verification by FSA. Refusal to allow FSA or any other
agency of the Department of Agriculture to verify any information
provided will result in a denial of eligibility. Furnishing the
information is voluntary; however, without it program benefits will not
be approved. Providing a false certification to the Federal Government
may be punishable by imprisonment, fines and other penalties or
sanctions.
(e) To ensure all producers are provided an opportunity to submit
actual costs for reimbursement at the actual cost rate, applicants will
have 30 days after the end of the FY to provide supporting documentation
of actual transportation costs to the FSA County Office. The actual
costs documented in supporting documentation will override previously
reported costs of eligible reimbursable costs at the fixed or set rate
made during the application period.
(f) If verifiable records are not provided to FSA, the producer will
be ineligible for payment.
(g) If supporting documentation is provided within 30 days after the
end of the FY, but an application was not submitted to the applicable
FSA County Office before the end of the application period, the producer
is not eligible for payment.
(h) Producers who submit applications after the application period
are not entitled to any payment consideration or determination of
eligibility. Regardless of the reason why an application is not
submitted to or received by FSA, any application received after the
close of business on such date will not be eligible for benefits under
this program.
Sec. 755.4 Eligibility.
(a) To be eligible to receive payments under this part, a
geographically disadvantaged farmer or rancher must:
(1) Be a producer of an eligible agricultural commodity in
substantial commercial quantities;
(2) Incur transportation costs for the transportation of the
agricultural commodity or input used to produce the agricultural
commodity;
(3) Submit an accurate and complete application for payment as
specified in Sec. 755.3; and
(4) Be in compliance with the wetland and highly erodible
conservation requirements in part 12 of this title and meet the adjusted
gross income and
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pay limit eligibility requirements in part 1400 of this title, as
applicable, except that the $8,000 cap provided for in this rule is a
per producer cap, not a per person cap. For example, a partnership of
four individuals would be considered one producer, not four persons, for
the purposes of this cap and thus the partnership could only generate a
single $8,000 payment under this program if the cap holds because of
full subscription of the program.
(b) Individual producers in an agricultural operation that is an
entity are only eligible for a payment based on their share of the
operation. A producer is not eligible for payment based on the share of
production of any other producer.
(c) Multiple producers, such as the buyer and seller of a commodity
(for example, a producer of hay and a livestock operation that buys the
hay), are not eligible for payments for the same eligible transportation
cost. Unless the multiple producers agree otherwise, only the last buyer
will be eligible for the payment.
(d) A person or entity determined to be a ``foreign person'' under
part 1400 of this title is not eligible to receive benefits under this
part, unless that person provides land, capital, and a substantial
amount of active personal labor in the production of crops on such farm.
(e) State and local governments and their political subdivisions and
related agencies are not eligible for RTCP payments.
Sec. 755.5 Proof of eligible reimbursement costs incurred.
(a) To be eligible for reimbursement based on FSA fixed or set rates
as specified in Sec. 755.7, the requirements specified in paragraphs
(b) and (c) of this section must be met at the time of the application.
To be eligible for reimbursement of actual costs, the requirements of
paragraph (d) must also be met, within 30 days after the end of the
applicable fiscal year.
(b) Eligible verifiable records to support eligible reimbursement
costs include, but are not limited to:
(1) Invoices;
(2) Account statements;
(3) Contractual Agreements; or
(4) Bill of Lading.
(c) Verifiable records must show:
(1) Name of producer(s);
(2) Commodity and unit of measure;
(3) Type of input(s) associated with transportation costs;
(4) Date(s) of service;
(5) Name of person or entity providing the service, as applicable,
and;
(6) Retail sales receipts with verifiable records handwritten as
applicable.
(d) To be eligible for reimbursement based on actual costs, the
producer must provide supporting documentation that documents the
specific costs incurred for transportation of each commodity or input.
Such documentation must:
(1) Show transportation costs for each specific commodity or input,
and
(2) Show the units of measure for each commodity or input, such that
FSA can determine the transportation cost per unit.
Sec. 755.6 Availability of funds.
(a) Payments under this part are subject to the availability of
funds.
(b) A reserve will be created to handle appeals and errors.
Sec. 755.7 Transportation rates.
(a) Payments may be based on fixed, set, or actual transportation
rates. Fixed and set transportation rates will be established by FSA,
based on available data for transportation costs for that commodity or
input in the applicable State or insular region.
(b) Fixed transportation rates will establish per unit
transportation costs for each eligible commodity or input used to
produce the eligible commodity.
(c) Set transportation rates will be established for those
transportation costs that are not on the FSA list of fixed rates and for
which an actual rate cannot be documented. The set transportation rate
will be set by FSA, based on available data of transportation costs for
similar commodities and inputs.
(d) Actual transportation rates will be determined based on
supporting documentation.
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Sec. 755.8 Calculation of individual payments.
(a) Transportation cost for each commodity or input will be
calculated by multiplying the number of reported eligible units (the
reported transportation amount) times the fixed, set, or actual
transportation rate, as applicable.
(b) Eligible reimbursement amounts will be calculated by multiplying
the result of paragraph (a) of this section times the appropriate FY
COLA percentage, as provided in this part.
(c) If transported inputs are used for both eligible and ineligible
commodities, the eligible reimbursable costs will be determined on a
revenue share of eligible commodities times input cost, as determined by
FSA, and transportation may be allowed only for those commodities which
were produced for the commercial market.
(d) The total payment amount for a producer is the sum of all
eligible reimbursable amounts determined in paragraph (b) of this
section for all commodities and inputs used to produce the eligible
commodities listed on the application.
(e) Payment amounts are subject to $8,000 cap per FY per producer as
defined in this part, not per ``person'' or ``legal entity'' as those
terms might be defined in part 1400 of this title.
(f) In the event that approval of all calculated payment amounts
would result in expenditures in excess of the amount available, FSA will
recalculate the payment amounts in a manner that FSA determines to be
fair and reasonable.
Sec. 755.9 Misrepresentation and scheme or device.
(a) In addition to other penalties, sanctions or remedies as may
apply, a producer will be ineligible to receive payments under this part
if the producer is determined by FSA to have:
(1) Adopted any scheme or device that tends to defeat the purpose of
this part;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(b) Any payment to any producer engaged in a misrepresentation,
scheme, or device, must be refunded with interest together with such
other sums as may become due. Any producer engaged in acts prohibited by
this section and receiving payment under this part will be jointly and
severally liable with other producers involved in such claim for
benefits for any refund due under this section and for related charges.
The remedies provided in this part will be in addition to other civil,
criminal, or administrative remedies that may apply.
Sec. 755.10 Death, incompetence, or disappearance.
(a) In the case of the death, incompetency, or disappearance of a
person or the dissolution of an entity that is eligible to receive a
payment in accordance with this part, such alternate person or persons
specified in part 707 of this chapter may receive such payment, as
determined appropriate by FSA.
(b) Payments may be made to an otherwise eligible producer who is
now deceased or to a dissolved entity if a representative who currently
has authority to enter into an application for the producer or the
producer's estate signs the application for payment. Proof of authority
over the deceased producer's estate or a dissolved entity must be
provided.
(c) If a producer is now a dissolved general partnership or joint
venture, all members of the general partnership or joint venture at the
time of dissolution or their duly authorized representatives must be
identified in the application for payment.
Sec. 755.11 Maintaining records.
Persons applying for payment under this part must maintain records
and accounts to document all eligibility requirements specified in this
part. Such records and accounts must be retained for 3 years after the
date of payment to the producer under this part.
Sec. 755.12 Refunds; joint and several liability.
(a) Any producer that receives excess payment, payment as the result
of erroneous information provided by any person, or payment resulting
from a
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failure to comply with any requirement or condition for payment under
this part, must refund the amount of that payment to FSA.
(b) Any refund required will be due from the date of the
disbursement by the agency with interest determined in accordance with
paragraph (d) of this section and late payment charges as provided in
part 1403 of this title.
(c) Each producer that has an interest in the agricultural operation
will be jointly and severally liable for any refund and related charges
found to be due to FSA.
(d) Interest will be applicable to any refunds to FSA required in
accordance with parts 792 and 1403 of this title except as otherwise
specified in this part. Such interest will be charged at the rate that
the U.S. Department of the Treasury charges FSA for funds, and will
accrue from the date FSA made the payment to the date the refund is
repaid.
(e) FSA may waive the accrual of interest if it determines that the
cause of the erroneous payment was not due to any action of the person
or entity, or was beyond the control of the person or entity committing
the violation. Any waiver is at the discretion of FSA alone.
Sec. 755.13 Miscellaneous provisions and appeals.
(a) Offset. FSA may offset or withhold any amount due to FSA from
any benefit provided under this part in accordance with the provisions
of part 1403 of this title.
(b) Claims. Claims or debts will be settled in accordance with the
provisions of part 1403 of this title.
(c) Other interests. Payments or any portion thereof due under this
part will be made without regard to questions of title under State law
and without regard to any claim or lien against the eligible
reimbursable costs thereof, in favor of the owner or any other creditor
except agencies and instrumentalities of the U.S. Government.
(d) Assignments. Any producer entitled to any payment under this
part may assign any payments in accordance with the provisions of part
1404 of this title.
(e) Violations regarding controlled substances. The provisions of
Sec. 718.6 of this chapter, which generally limit program payment
eligibility for persons who have engaged in certain offenses with
respect to controlled substances, will apply to this part.
(f) Appeals. The appeal regulations specified in parts 11 and 780 of
this chapter apply to determinations made under this part.
PART 759_DISASTER DESIGNATIONS AND NOTIFICATIONS--Table of Contents
Sec.
759.1 Administration.
759.2 Purpose.
759.3 Abbreviations and definitions.
759.5 Secretarial disaster area determination and notification process.
759.6 EM to be made available.
Authority: 5 U.S.C. 301, 7 U.S.C. 1961 and 1989.
Source: 77 FR 41254, July 13, 2012, unless otherwise noted.
Sec. 759.1 Administration.
(a) This part will be administered under the general supervision and
direction of the Administrator, Farm Service Agency (FSA).
(b) FSA representatives do not have authority to modify or waive any
of the provisions of the regulations of this part as amended or
supplemented.
(c) The Administrator will take any action required by the
regulations of this part that the Administrator determines has not
already been taken. The Administrator will also:
(1) Correct or require correction of any action taken that is not in
accordance with the regulations of this part; or
(2) Require withholding taking any action that is not in accordance
with this part.
(d) No provision or delegation in these regulations will preclude
the Administrator or a designee or other such person, from determining
any question arising under this part, or from reversing or modifying any
determination made under this part.
(e) Absent a delegation to the contrary, this part will be
administered by the Deputy Administrator for Farm
[[Page 71]]
Programs of FSA on behalf of the Administrator of FSA or the Secretary,
but nothing in this part will inhibit the ability of the Administrator
of FSA or the person holding the equivalent position in the event of a
reorganization to delegate the functions of DAFP under these regulations
to another person. Likewise, nothing shall inhibit the ability of the
Secretary to reassign any duties with respect to the designations of
disasters under this part.
Sec. 759.2 Purpose.
(a) This part specifies the types of incidents that can result in an
area being determined a disaster area, which under other regulations
makes qualified farmers in such areas eligible for Emergency loans (EM)
or eligible for such other assistance that may be available, based on
Secretarial disaster designations. Nothing in this part overrides
provision of those regulations that govern the actual administration and
availability of the disaster assistance regulations.
(b) This part specifies the responsibility of the County Emergency
Board (CEB), State Emergency Board (SEB), and the State Executive
Director (SED) in regard to Secretarial Designations with regards to
disasters. It also addresses matters relating to the handling of a
Presidential declaration of disaster or the imposition of a USDA
quarantine by the Secretary with respect to triggering the availability
of EM loans.
Sec. 759.3 Abbreviations and definitions.
(a) Abbreviations. The following abbreviations apply to this part.
CEB means the County Emergency Board.
CED means the County Executive Director.
DAFP means the Deputy Administrator for Farm Programs of the Farm
Service Agency.
EM means Emergency loan administered under 7 CFR part 764.
FSA means the Farm Service Agency.
LAR means the Loss Assessment Report.
SEB means the State Emergency Board.
SED means the State Executive Director.
USDA means the United States Department of Agriculture.
(b) Definitions. The following definitions apply to this part.
Administrator means the Administrator of FSA.
Contiguous county is used in reference to a primary county as
defined in this section. A contiguous county is any county whose
boundary touches at any point with that of the primary county. For
programs other than the EM Program, disaster assistance regulations will
specify whether benefits will be available only in the primary counties
or also in the contiguous counties. For the EM Program that issue is
addressed in Sec. 759.6, unless specified otherwise in the disaster
assistance regulations for other programs or in Sec. 759.6 for the EM
Program, only the ``primary'' county will be considered the qualifying
``disaster county.'' Therefore, if the disaster assistance regulations
specify that they cover the disaster area and contiguous counties, then
the only eligible counties would be the primary county and those
contiguous to that county. Coverage would not include coverage of those
counties that are in turn contiguous to those counties that are
contiguous to the primary county.
County is used when referring to a geographical area, a local
administrative subdivision of a State or a similar political subdivision
of the United States generally considered to be in county usage, for
example, it includes an area referred to as a ``county'' or ``parish.''
Except where otherwise specified, the use of the term county or similar
political subdivision is for administrative purposes only.
CEB is comprised of the representatives of several USDA agencies
that have responsibilities for reporting the occurrence of, and
assessing the damage caused by, a natural disaster, and for requesting
approval in declaring a county a disaster area.
CED is the person in charge of administering the local FSA county
office for a particular county.
Disaster area is the county or counties declared or designated as a
disaster area as a result of natural disaster related losses. The
disaster area only includes the primary counties, but
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benefits may be available in the counties contiguous to the primary
county if so provided by the disaster assistance regulations or, in the
case of the EM Program, in Sec. 759.6.
LAR is a loss assessment report prepared by the CEB relating to the
State and county where the potential disaster occurred and for which
county or counties the CEB is responsible. The LAR includes as
applicable, but is not limited to, starting and ending dates of the
disaster, crop year affected, type of disaster incident, area of county
affected by disaster; total number of farms affected, crop loss or
pasture loss data associated with the applicable disaster (or both types
of losses), livestock destroyed, and other property losses.
Natural disaster is a disaster in which unusual and adverse weather
conditions or other natural phenomena have substantially affected
farmers by causing severe physical losses, severe production losses, or
both.
Primary county is a county determined to be a disaster area.
Presidential declaration is a declaration of a disaster by the
President under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121-2) requiring Federal emergency assistance
to supplement State and local efforts to save lives and protect
property, public health and safety, or to avert or lessen the threat of
a disaster.
Production losses (severe) within a county are those in which there
has been a reduction county-wide of at least a 30 percent or more loss
of production of at least one crop in the county.
SEB means the State Emergency Board which is comprised of the
representatives of several USDA agencies having emergency program
responsibilities at the State level. The board is required to respond to
emergencies and carry out the Secretary's emergency preparedness
responsibilities.
SED is the person who serves as the Chairperson of the USDA SEB in
each State, is responsible for providing the leadership and coordination
for all USDA emergency programs at the State level, and is subject to
the supervision of DAFP.
Severe physical losses means, for the purpose of determining an
Administrator's declaration of physical loss, losses that consist of
severe damage to, or destruction of: Physical farm property including
farmland (except sheet erosion); structures on the land including, but
not limited to, building, fences, dams; machinery, equipment, supplies,
and tools; livestock, livestock products, poultry and poultry products;
harvested crops and stored crops.
Substantially affected when used to refer to producers and to the
relationship of a particular producer to a particular disaster means a
producer who has sustained qualifying physical or production losses, as
defined in this section, as a result of the natural disaster.
U.S. Drought Monitor is a system for classifying drought severity
according to a range of abnormally dry to exceptional drought. It is a
collaborative effort between Federal and academic partners that is
produced on a weekly basis to synthesize multiple indices, outlooks, and
drought impacts on a map and in narrative form. This synthesis of
indices is reported by the National Drought Mitigation Center.
United States means each of the several States, the Commonwealth of
Puerto Rico, the Virgin Islands of the United States, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands. Extension
of disaster assistance, following a disaster designation, to insular
areas of the United States not covered by this definition of ``United
States'' will be only as authorized by law, and as determined by the
Administrator on behalf of the Secretary to be appropriate.
Sec. 759.5 Secretarial disaster area determination and notification
process.
(a) U.S. Drought Monitor. With respect to drought and without
requiring an LAR:
(1) If any portion of a county is physically located in an area with
a Drought Monitor Intensity Classification value of D3 (drought-extreme)
or higher during any part of the growing season of the crops affected by
the disaster in the county, then the county will be designated a
disaster area by the Secretary.
[[Page 73]]
(2) If any portion of a county meets the threshold Drought Monitor
Intensity Classification value of D2 (drought-severe) for at least 8
consecutive weeks during the growing season of affected crops, then the
county will be designated a disaster area by the Secretary.
(b) CEB and SEB recommendations. In instances where counties have
been impacted by a disaster but the county has not been designated a
disaster area under the provisions of paragraph (a) of this section, CEB
will make a disaster designation recommendation request to SEB when a
disaster has resulted in severe production losses. The determination of
the sufficiency of the production losses will be governed by the
provisions in paragraph (c) of this section. The CEB may make such
efforts as are needed to identify counties that have been impacted and
had such production losses. A farmer, Indian Tribal Council, or local
governing body may initiate the process by reporting production losses
or drought conditions to CEB and suggesting that there be a
recommendation in favor of designating a county as a disaster area.
Recommendations by a CEB in favor of a disaster designation by a CEB
under this paragraph are subject to the following:
(1) A LAR is required as part of a CEB disaster designation request.
CEB will submit a disaster designation request with a LAR to SEB for
review and recommendation for approval by the Secretary. CEB's written
request and SEB recommendation must be submitted within three months of
the last day of the occurrence of a natural disaster.
(2) If SEB determines a qualifying natural disaster and loss have
occurred, SEB will forward the recommendation to the Administrator. The
natural disaster may include drought conditions that were not
sufficiently severe to meet the criteria in paragraph (a) of this
section. Since the U.S. Drought Monitor tracks only drought conditions,
not specifically agricultural losses resulting from those conditions, it
is possible for a drought that does not meet the criteria in paragraph
(a) of this section to result in production losses that constitute a
natural disaster.
(3) The Secretary or the Secretary's designee will make disaster
area determinations. The Secretary may delegate the authority to the
SED. In such case, the SED will act on behalf of the Secretary, subject
to review by DAFP as may be appropriate and consistent with the
delegation. The delegation of authority to the SED may be revoked by the
authority making that delegation or by other authorized person. In all
cases, DAFP may reverse any SED determination made in accordance with
this section unless the delegation to the SED specifies that such review
is not allowed.
(c) Eligible production losses. For purposes of making
determinations under paragraph (b) of this section, in order for an area
to be declared a disaster area under paragraph (b) of this section based
on production losses, the county must have had production losses of 30
percent of at least one crop in the county as the result of a natural
disaster.
(d) Discretionary exception to production losses for designating a
county as a disaster county. For purposes of the EM program only, unless
otherwise specified in the designation, a county may be designated by
DAFP as a designated disaster county even though the conditions
specified in paragraphs (a) through (c) of this section are not present
so long as the disaster has otherwise produced such significant
production losses, or other such extenuating circumstances so as to
justify, in the opinion of the Secretary, the designation of a county as
a disaster area. In making this determination, the Secretary may
consider all relevant factors including such factors as the nature and
extent of production losses; the number of farmers who have sustained
qualifying production losses; the number of farmers that other lenders
in the county indicate they will not be in position to provide emergency
financing; whether the losses will cause undue hardship to a certain
segment of farmers in the county; whether damage to particular crops has
resulted in undue hardship; whether other Federal or State benefit
programs, which are being made available due to the same
[[Page 74]]
disaster, will consequently lessen undue hardship and the demand for EM;
and any other factors considered relevant.
Sec. 759.6 EM to be made available.
(a) For purposes of the EM Program under part 764, subpart I, of
this chapter, a county will be considered an eligible disaster area as
designated by FSA for coverage of the EM Program as follows:
(1) Secretarial designations. When production losses meet the
requirements in Sec. 759.5 and the county has been designated as a
disaster area for that reason, or when the discretionary exception to
production losses for EM under Sec. 759.5(d) has been exercised, the
primary and contiguous counties will be areas in which otherwise
eligible producers can receive EM loans.
(2) Physical loss notification. When only qualifying physical losses
occur, the SED will submit a request to the FSA Administrator to make a
determination that a natural disaster has occurred in a county,
resulting in severe physical losses. If the FSA Administrator determines
that such a natural disaster has occurred, then EM can be made available
to eligible farmers for physical losses only in the primary county (the
county that was the subject of that determination) and the counties
contiguous to that county.
(3) USDA quarantine. Any quarantine imposed by the Secretary of
Agriculture under the Plant Protection Act or the animal quarantine
laws, as defined in section 2509 of the Food, Agriculture, Conservation,
and Trade Act of 1990, automatically authorizes EM for production and
physical losses resulting from the quarantine in a primary county (the
county in which the quarantine was in force) and (where the quarantine
effects extend beyond that county) the counties contiguous to that
primary county.
(4) Presidential declaration. Whenever the President declares a
Major Disaster Declaration or an Emergency Declaration, FSA will make EM
available to eligible applicants in declared and contiguous counties,
provided:
(i) The Presidential declaration is not solely for Category A or
Category B Public Assistance or Hazard Mitigation Grant Assistance, and
(ii) The Presidential Major Disaster declaration is for losses due
to severe, general disaster conditions including but not limited to
conditions such as flood, hurricane, or earthquake.
(b) [Reserved]
PART 760_INDEMNITY PAYMENT PROGRAMS--Table of Contents
Subpart A_Dairy Indemnity Payment Program
Program Operations
Sec.
760.1 Administration.
760.2 Definitions.
Payments to Dairy Farmers for Milk
760.3 Indemnity payments on milk.
760.4 Normal marketings of milk.
760.5 Fair market value of milk.
760.6 Information to be furnished.
760.7 Other requirements for affected farmers.
760.8 Application for payments for milk.
760.9 Other legal recourse.
Payments to Manufacturers Affected by Pesticides
760.20 Payments to manufacturers of dairy products.
760.21 Application for payments by manufacturers.
760.22 Information to be furnished by manufacturer.
760.23 Other requirements for manufacturers.
General Provisions
760.24 Limitation of authority.
760.25 Estates and trusts; minors.
760.26 Appeals.
760.27 Setoffs.
760.28 Overdisbursement.
760.29 Death, incompetency, or disappearance.
760.30 Records and inspection thereof.
760.31 Assignment.
760.32 Instructions and forms.
760.33 Availability of funds.
Subpart B_General Provisions for Supplemental Agricultural Disaster
Assistance Programs
760.101 Applicability.
760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
760.103 Eligible producer.
760.104 Risk management purchase requirements.
[[Page 75]]
760.105 Waiver for certain crop years; buy-in.
760.106 Equitable relief.
760.107 Socially disadvantaged, limited resource, or beginning farmer or
rancher.
760.108 Payment limitation.
760.109 Misrepresentation and scheme or device.
760.110 Appeals.
760.111 Offsets, assignments, and debt settlement.
760.112 Records and inspections.
760.113 Refunds; joint and several liability.
760.114 Minors.
760.115 Deceased individuals or dissolved entities.
760.116 Miscellaneous.
Subpart C_Emergency Assistance for Livestock, Honeybees, and Farm-Raised
Fish Program
760.201 Applicability.
760.202 Definitions.
760.203 Eligible losses, adverse weather, and other loss conditions.
760.204 Eligible livestock, honeybees, and farm-raised fish.
760.205 Eligible producers, owners, and contract growers.
760.206 Notice of loss and application process.
760.207 Notice of loss and application period.
760.208 Availability of funds.
760.209 Livestock payment calculations.
760.210 Honeybee payment calculations.
760.211 Farm-raised fish payment calculations.
Subpart D_Livestock Forage Disaster Program
760.301 Applicability.
760.302 Definitions.
760.303 Eligible livestock producer.
760.304 Covered livestock.
760.305 Eligible grazing losses.
760.306 Application for payment.
760.307 Payment calculation.
Subpart E_Livestock Indemnity Program
760.401 Applicability.
760.402 Definitions.
760.403 Eligible owners and contract growers.
760.404 Eligible livestock.
760.405 Application process.
760.406 Payment calculation.
Subpart F_Tree Assistance Program
760.500 Applicability.
760.501 Administration.
760.502 Definitions.
760.503 Eligible losses.
760.504 Eligible orchardists and nursery tree growers.
760.505 Application.
760.506 Payment calculation.
760.507 Obligations of a participant.
Subpart G_Supplemental Revenue Assistance Payments Program
760.601 Applicability.
760.602 Definitions.
760.610 Participant eligibility.
760.611 Qualifying losses, eligible causes and types of loss.
760.613 De minimis exception.
760.614 Lack of access.
760.620 Time and method of application and certification of interests.
760.621 Requirement to report acreage and production.
760.622 Incorrect or false producer production evidence.
760.631 SURE guarantee calculation.
760.632 Payment acres.
760.633 2008 SURE guarantee calculation.
760.634 SURE guarantee for value loss crops.
760.635 Total farm revenue.
760.636 Expected revenue.
760.637 Determination of production.
760.638 Determination of SURE yield.
760.640 National average market price.
760.641 Adjustments made to NAMP to reflect loss of quality.
760.650 Calculating SURE.
Subpart H_Crop Assistance Program
760.701 Applicability.
760.702 Definitions.
760.703 Producer eligibility requirements.
760.704 Time and method of application.
760.705 Payment rates and calculation of payments.
760.706 Availability of funds.
760.707 Proof of loss.
760.708 Miscellaneous provisions and limitations.
Subpart I_2005 2007 Crop Disaster Program
760.800 Applicability.
760.801 Administration.
760.802 Definitions.
760.803 Eligibility.
760.804 Time and method of application.
760.805 Limitations on payments and other benefits.
760.806 Crop eligibility requirements.
760.807 Miscellaneous provisions.
760.808 General provisions.
760.809 Eligible damaging conditions.
760.810 Qualifying 2005, 2006, or 2007 quantity crop losses.
760.811 Rates and yields; calculating payments.
760.812 Production losses; participant responsibility.
760.813 Determination of production.
[[Page 76]]
760.814 Calculation of acreage for crop losses other than prevented
planted.
760.815 Calculation of prevented planted acreage.
760.816 Value loss crops.
760.817 Quality losses for 2005, 2006, and 2007 crops.
760.818 Marketing contracts.
760.819 Misrepresentation, scheme, or device.
760.820 Offsets, assignments, and debt settlement.
760.821 Compliance with highly erodible land and wetland conservation.
Subpart J_2005 2007 Livestock Indemnity Program
760.900 Administration.
760.901 Applicability.
760.902 Eligible counties and disaster periods.
760.903 Definitions.
760.904 Limitations on payments and other benefits.
760.905 Eligible owners and contract growers.
760.906 Eligible livestock.
760.907 Application process.
760.908 Deceased individuals or dissolved entities.
760.909 Payment calculation.
760.910 Appeals.
760.911 Offsets, assignments, and debt settlement.
760.912 Records and inspections.
760.913 Refunds; joint and several liability.
Subpart K_General Provisions for 2005 2007 Livestock Compensation and
Catfish Grant Programs
760.1000 Applicability.
760.1001 Eligible counties, disaster events, and disaster periods.
760.1002 Definitions.
760.1003 Limitations on payments and other benefits.
Subpart L_2005 2007 Livestock Compensation Program
760.1100 Applicability.
760.1101 Administration.
760.1102 Definitions.
760.1103 Eligible livestock and producers.
760.1104 Application for payment.
760.1105 Application process.
760.1106 Payment calculation.
760.1107 Appeals.
760.1108 Offsets, assignments, and debt settlement.
760.1109 Recordkeeping and inspections.
760.1110 Refunds; joint and several liability.
Subpart M_2005 2007 Catfish Grant Program
760.1200 Administration.
760.1201 Application for payment.
760.1202 Eligible producers.
760.1203 Payment calculation.
Subpart N_Dairy Economic Loss Assistance Payment Program
760.1301 Administration.
760.1302 Definitions and acronyms.
760.1303 Requesting benefits.
760.1304 Eligibility.
760.1305 Proof of production.
760.1306 Availability of funds.
760.1307 Dairy operation payment quantity.
760.1308 Payment rate.
760.1309 Appeals.
760.1310 Misrepresentation and scheme or device.
760.1311 Death, incompetence, or disappearance.
760.1312 Maintaining records.
760.1313 Refunds; joint and several liability.
760.1314 Miscellaneous provisions.
Authority: 7 U.S.C. 4501, 7 U.S.C. 1531, 16 U.S.C. 3801, note, and
19 U.S.C. 2497; Title III, Pub. L. 109-234, 120 Stat. 474; Title IX,
Pub. L. 110-28, 121 Stat. 211; and Sec. 748, Pub. L. 111-80, 123 Stat.
2131.
Subpart A_Dairy Indemnity Payment Program
Authority: 7 U.S.C. 450j-l.
Source: 43 FR 10535, Mar. 14, 1978, unless otherwise noted.
Program Operations
Sec. 760.1 Administration.
This indemnity payment program will be carried out by FSA under the
direction and supervision of the Deputy Administrator. In the field, the
program will be administered by the State and county committees.
Sec. 760.2 Definitions.
For purposes of this subject, the following terms shall have the
meanings specified:
(a) Secretary means the Secretary of Agriculture of the United
States or any officer or employee of the U.S. Department of Agriculture
to whom he has delegated, or to whom he may hereafter delegate,
authority to act in his stead.
[[Page 77]]
(b) FSA means the Farm Service Agency, U.S. Department of
Agriculture.
(c) Deputy Administrator means the Deputy Administrator for Farm
Programs, FSA.
(d) State committee means the FSA State committee.
(e) County committee means the FSA county committee.
(f) Pesticide means an economic poison which was registered pursuant
to the provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended (7 U.S.C. 135 through 135k), and approved for use by the
Federal Government.
(g) Chemicals or Toxic Substances means any chemical substance or
mixture as defined in the Toxic Substances Control Act (15 U.S.C. 2602).
(h) Nuclear Radiation or Fallout means contamination from nuclear
radiation or fallout from any source.
(i) Violating Substance means one or more of the items defined in
paragraphs (f), (g), and (h) of this section.
(j) Public agency means any Federal, State or local public
regulatory agency.
(k) Affected farmer means a person who produces whole milk which is
removed from the commerical market any time from:
(1) Pursuant to the direction of a public agency because of the
detection of pesticide residues in such whole milk by tests made by a
public agency or under a testing program deemed adequate for the purpose
by a public agency, or
(2) Pursuant to the direction of a public agency because of the
detection of other residues of chemicals or toxic substances residues,
or contamination from nuclear radiation or fallout in such whole milk by
tests made by a public agency or under a testing program deemed adequate
for the purpose by a public agency.
(l) Affected manufacturer means a person who manufactures dairy
products which are removed from the commercial market pursuant to the
direction of a public agency because of the detection of pesticide
residue in such dairy products by tests made by a public agency or under
a testing program deemed adequate for the purpose by a public agency.
(m) Milk handler means the marketing agency to or through which the
affected dairy farmer marketed his whole milk at the time he was
directed by the public agency to remove his whole milk from the
commercial market.
(n) Person means an individual, partnership, association,
corporation, trust, estate, or other legal entity.
(o) Application period means any period during which an affected
farmer's whole milk is removed from the commercial market pursuant to
direction of a public agency for a reason specified in paragraph (k) of
this section and for which application for payment is made.
(p) Pay period means (1) in the case of an affected farmer who
markets his whole milk through a milk handler, the period used by the
milk handler in settling with the affected farmer for his whole milk,
usually biweekly or monthly, or (2) in the case of an affected farmer
whose commercial market consists of direct retail sales to consumers, a
calendar month.
(q) Whole milk means milk as it is produced by cows.
(r) Commercial market means (1) the market to which the affected
farmer normally delivers his whole milk and from which it was removed
because of detection therein of a residue of a violating substance(s) or
(2) the market to which the affected manufacturer normally delivers his
dairy products and from which they were removed because of detection
therein of pesticide residue.
(s) Removed from the commercial market means (1) produced and
destroyed or fed to livestock, (2) produced and delivered to a handler
who destroyed it or disposed of it as salvage (such as separating whole
milk, destroying the fat, and drying the skim milk), or (3) produced and
otherwise diverted to other than the commercial market.
(t) Payment subject to refund means a payment which is made by a
milk handler to an affected farmer, and which such farmer is obligated
to refund to the milk handler.
(u) Base period means the calendar month or 4-week period
immediately
[[Page 78]]
preceding removal of milk from the market.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, July
22, 1979; 52 FR 17935, May 13, 1987; 53 FR 44001, Nov. 1, 1988; 56 FR
1358, Jan. 14, 1991; 61 FR 18485, Apr. 26, 1996; 71 FR 27190, May 10,
2006]
Payments to Dairy Farmers for Milk
Sec. 760.3 Indemnity payments on milk.
An indemnity payment for milk may be made to an affected farmer who
is determined by the county committee to be in compliance with all the
terms and conditions of this subpart in the amount of the fair market
value of his normal marketings for the application period, as determined
in accordance with Sec. Sec. 760.4 and 760.5, less (a) any amount he
received for whole milk marketed during the applications period, and (b)
any payment not subject to refund which he received from a milk handler
with respect to whole milk removed from the commercial market during the
application period.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.4 Normal marketings of milk.
(a) The county committee shall determine the affected farmer's
normal marketings which, for the purposes of this subpart, shall be the
sum of the quantities of whole milk which such farmer would have sold in
the commercial market in each of the pay periods in the application
period but for the removal of his whole milk from the commercial market
because of the detection of a residue of a violating substance.
(b) Normal marketings for each pay period are based on the average
daily production during the base period.
(c) Normal marketings determined in paragraph (b) of this section
are adjusted for any change in the daily average number of cows milked
during each pay period the milk is off the market compared with the
average number of cows milked daily during the base period.
(d) If only a portion of a pay period falls within the application
period, normal marketings for such pay period shall be reduced so that
they represent only that part of such pay period which is within the
application period.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, July
22, 1979]
Sec. 760.5 Fair market value of milk.
(a) The county committee shall determine the fair market value of
the affected farmer's normal marketings, which, for the purposes of this
subpart, shall be the sum of the net proceeds such farmer would have
received for his normal marketings in each of the pay periods in the
application period.
(b) The county committee shall determine the net proceeds the
affected farmer would have received in each of the pay periods in the
application period (1) in the case of an affected farmer who markets his
whole milk through a milk handler, by multiplying the affected farmer's
normal marketings for each such pay period by the average net price per
hundred-weight of whole milk paid during the pay period by such farmer's
milk handler in the same area for whole milk similar in quality and
butterfat test to that marketed by the affected farmer in the base
period used to determine his normal marketings, or (2) in the case of an
affected farmer whose commercial market consists of direct retail sales
to consumers, by multiplying the affected farmer's normal marketings for
each such pay period by the average net price per hundredweight of whole
milk, as determined by the county committee, which other producers in
the same area who marketed their whole milk through milk handlers
received for whole milk similar in quality and butterfat test to that
marketed by the affected farmer during the base period used to determine
his normal marketings.
(c) In determining the net price for whole milk, the county
committee shall deduct from the gross price therefor any transportation,
administrative, and other costs of marketing which it determines are
normally incurred by the affected farmer but which were not incurred
because of the removal of his whole milk from the commercial market.
[[Page 79]]
Sec. 760.6 Information to be furnished.
The affected farmer shall furnish to the county committee complete
and accurate information sufficient to enable the county committee or
the Deputy Administrator to make the determinations required in this
subpart. Such information shall include, but is not limited to:
(a) A copy of the notice from, or other evidence of action by, the
public agency which resulted in the removal of the affected farmer's
whole milk from the commercial market.
(b) The specific name of the violating substance causing the removal
of his whole milk from the commercial market, if not included in the
notice or other evidence of action furnished under paragraph (a) of this
section.
(c) The quantity and butterfat test of whole milk produced and
marketed during the base period. This information must be a certified
statement from the affected farmer's milk handler or any other evidence
the county committee accepts as an accurate record of milk production
and butterfat tests during the base period.
(d) The average number of cows milked during the base period and
during each pay period in the application.
(e) If the affected farmer markets his whole milk through a milk
handler, a statement from the milk handler showing, for each pay period
in the application period, the average price per hundred-weight of whole
milk similar in quality to that marketed by the affected farmer during
the base period used to determine his normal marketings. If the milk
handler has information as to the transportation, administrative, and
other costs of marketing which are normally incurred by producers who
market through the milk handler but which the affected farmer did not
incur because of removal of his whole milk from the market, the average
price stated by the milk handler shall be the average gross price paid
producers less any such costs. If the milk handler does not have such
information, the affected farmer shall furnish a statement setting forth
such costs, if any.
(f) The amount of proceeds, if any, received by the affected farmer
from the marketing of whole milk produced during the application period.
(g) The amount of any payments not subject to refund made to the
affected farmer by the milk handler with respect to the whole milk
produced during the application period and remove from the commercial
market.
(h) To the extent that such information is available to the affected
farmer, the name of any pesticide, chemical, or toxic substance used on
the farm within 24 months prior to the application period, the use made
of the pesticide, chemical, or toxic substance, the approximate date of
such use, and the name of the manufacturer and the registration number,
if any, on the label on the container of the pesticide, chemical, or
toxic substance.
(i) To the extent possible, the source of the pesticide, chemical,
or toxic substance that caused the contamination of the whole milk, and
the results of any laboratory tests on the feed supply.
(j) Such other information as the county committee may request to
enable the county committee or the Deputy Administrator to make the
determinations required in this subpart.
[43 FR 10535, Mar. 14, 1978, as amended by Amdt. 1, 44 FR 36360, June
22, 1979]
Sec. 760.7 Other requirements for affected farmers.
An indemnity payment for milk may be made under this subpart to an
affected farmer only under the following conditions:
(a) If the pesticide, chemical, or toxic substance, contaminating
the milk was used by the affected farmer, he established each of the
following:
(1) That the pesticide, chemical or toxic substance, when used, was
registered (if applicable) and approved for use as provided in Sec.
760.2(f);
(2) That the contamination of his milk was not the result of his
failure to use the pesticide, chemical, or toxic substance, according to
the directions and limitations stated on the label;
(3) That the contamination of his milk was not otherwise his fault.
(b) If the pesticide, chemical, or toxic substance contaminating the
milk was not used by the affected farmer, he establishes each of the
following:
[[Page 80]]
(1) He did not know or have reason to believe that any feed which he
purchased and which contaminated his milk contained a harmful residue of
a pesticide, a chemical, or a toxic substance or was contaminated by
nuclear radiation or fallout.
(2) None of the milk was produced by dairy cattle which he knew, or
had reason to know at the time he acquired them, were contaminated with
residues of pesticides, chemicals or toxic substances, or by nuclear
radiation or fallout.
(3) The contamination of his milk was not otherwise his fault.
(c) The affected farmer has adopted recommended practices for
eliminating residues of pesticides, chemicals, or toxic substances or
contamination from nuclear radiation or fallout from his milk as soon as
practicable following the discovery of the initial contamination.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.8 Application for payments for milk.
The affected farmer or his legal representative, as provided in
Sec. Sec. 760.25 and 760.29, must sign and file an application for
payment on a form which is approved for that purpose by the Deputy
Administrator. The form must be filed with the county FSA office for the
county where the farm headquarters are located no later than December 31
following the end of the fiscal year in which the loss occurred, or such
later date as the Deputy Administrator may specify. The application for
payment shall cover application periods of at least 28 days, except
that, if the entire application period, or the last application period,
is shorter than 28 days, applications for payment may be filed for such
shorter period. The application for payment shall be accompanied by the
information required by Sec. 760.6 as well as any other information
which will enable the county committee to determine whether the making
of an indemnity payment is precluded for any of the reasons set forth in
Sec. 760.7. Such information shall be submitted on forms approved for
the purpose by the Deputy Administrator.
[43 FR 10535, Mar. 14, 1978, as amended at 51 FR 12986, Apr. 17, 1986;
52 FR 17935, May 13, 1987]
Sec. 760.9 Other legal recourse.
(a) No indemnity payment shall be made for contaminated milk
resulting from residues of chemicals or toxic substances if, within 30
days after receiving a complete application, the Deputy Administrator
determines that other legal recouse is available to the farmer. An
application shall not be deemed complete unless it contains all
information necessary to make a determination as to whether other legal
recourse is available to the farmer. However, notwithstanding such a
determination, the Deputy Administrator may reopen the case at a later
date and make a new determination on the merits of the case as may be
just and equitable.
(b) In the event that a farmer receives an indemnity payment under
this subpart, and such farmer is later compensated for the same loss by
the person (or the representative or successor in interest of such
person) responsible for such loss, the indemnity payment shall be
refunded by the farmer to the Department of Agriculture: Provided, That
the amount of such refund shall not exceed the amount of other
compensation received by the farmer.
[Amdt. 1, 44 FR 36361, June 22, 1979]
Payments to Manufacturers Affected by Pesticides
Sec. 760.20 Payments to manufacturers of dairy products.
An indemnity payment may be made to the affected manufacturer who is
determined by the Deputy Administrator to be in compliance with all the
terms and conditions of this subpart in the amount of the fair market
value of the product removed from the commercial market because of
pesticide residues, less any amount the manufacturer receives for the
product in the form of salvage.
[[Page 81]]
Note: Manufacturers are not eligible for payment when dairy products
are contaminated by chemicals, toxic substances (other than pesticides)
or nuclear radiation or fallout.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.21 Application for payments by manufacturers.
The affected manufacturer, or his legal representatives, shall file
an application for payment with the Deputy Administrator, FSA,
Washington, D.C., through the county office serving the county where the
contaminated product is located. The application for payment may be in
the form of a letter or memorandum. Such letter or memorandum, however,
must be accompanied by acceptable documentation to support such
application for payment.
Sec. 760.22 Information to be furnished by manufacturer.
The affected manufacturer shall furnish the Deputy Administrator,
through the county committee, complete and accurate information
sufficient to enable him to make the determination as to the
manufacturer's eligibility to receive an indemnity payment. Such
information shall include, but is not limited to:
(a) A copy of the notice or other evidence of action by the public
agency which resulted in the product being removed from the commerical
market.
(b) The name of the pesticide causing the removal of the product
from the commerical market and, to the extent possible, the source of
the pesticide.
(c) A record of the quantity of milk or butterfat used to produce
the product for which an indemnity payment is requested.
(d) The identity of any pesticide used by the affected manufacturer.
(e) Such other information as the Deputy Administrator may request
to enable him to make the determinations required in this subpart.
Sec. 760.23 Other requirements for manufacturers.
An indemnity payment may be made under this subpart to an affected
manufacturer only under the following conditions:
(a) If the pesticide contaminating the product was used by the
affected manufacturer, he establishes each of the following: (1) That
the pesticide, when used, was registered and recommended for such use as
provided in Sec. 760.2(f); (2) that the contamination of his product
was not the result of his failure to use the pesticide in accordance
with the directions and limitations stated on the label of the
pesticide; and (3) that the contamination of his product was not
otherwise his fault.
(b) If the pesticide contaminating the product was not used by the
affected manufacturer: (1) He did not know or have reason to believe
that the milk from which the product was processed contained a harmful
level of pesticide residue, and (2) the contamination of his product was
not otherwise his fault.
(c) In the event that a manufacturer receives an indemnity payment
under this subpart, and such manufacturer is later compensated for the
same loss by the person (or the representative or successor in interest
of such person) responsible for such loss, the indemnity payment shall
be refunded by the manufacturer to the Department of Agriculture:
Provided, That the amount of such refund shall not exceed the amount of
other compensation received by the manufacturer.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982; 51
FR 12987, Apr. 17, 1986; 52 FR 17935, May 13, 1987]
General Provisions
Sec. 760.24 Limitation of authority.
(a) County executive directors and State and county committees do
not have authority to modify or waive any of the provisions of the
regulations in this subpart.
(b) The State committee may take any action authorized or required
by the regulations in this subpart to be taken by the county committee
when such action has not been taken by the county committee. The State
committee may also:
(1) Correct, or require a county committee to correct, any action
taken by such county committee which is not in accordance with the
regulations in this subpart, or (2) require a county committee to
withhold taking any action
[[Page 82]]
which is not in accordance with the regulations in this subpart.
(c) No delegation herein to a State or county committee shall
preclude the Deputy Administrator or his designee from determining any
question arising under the regulations in this subpart or from reversing
or modifying any determination made by a State or county committee.
Sec. 760.25 Estates and trusts; minors.
(a) A receiver of an insolvent debtor's estate and the trustee of a
trust estate shall, for the purpose of this subpart, be considered to
represent an insolvent affected farmer or manufacturer and the
beneficiaries of a trust, respectively, and the production of the
receiver or trustee shall be considered to be the production of the
person or manufacturer he represents. Program documents executed by any
such person will be accepted only if they are legally valid and such
person has the authority to sign the applicable documents.
(b) An affected dairy farmer or manufacturer who is a minor shall be
eligible for indemnity payments only if he meets one of the following
requirements:
(1) The right of majority has been conferred on him by court
proceedings or by statute;
(2) A guardian has been appointed to manage his property and the
applicable program documents are signed by the guardian; or
(3) A bond is furnished under which the surety guarantees any loss
incurred for which the minor would be liable had he been an adult.
Sec. 760.26 Appeals.
The appeal regulations issued by the Administrator, FSA, part 780 of
this chapter, shall be applicable to appeals by dairy farmers or
manufacturers from determinations made pursuant to the regulations in
this subpart.
Sec. 760.27 Setoffs.
(a) If the affected farmer or manufacturer is indebted to any agency
of the United States and such indebtedness is listed on the county debt
record, indemnity payments due the affected farmer or manufacturer under
the regulations in this part shall be applied, as provided in the
Secretary's setoff regulations, part 13 of this title, to such
indebtedness.
(b) Compliance with the provisions of this section shall not deprive
the affected farmer or manufacturer of any right he would otherwise have
to contest the justness of the indebtedness involved in the setoff
action, either by administrative appeal or by legal action.
Sec. 760.28 Overdisbursement.
If the indemnity payment disbursed to an affected farmer or to a
manufacturer exceeds the amount authorized under the regulations in this
subpart, the affected farmer or manufacturer shall be personally liable
for repayment of the amount of such excess.
Sec. 760.29 Death, incompetency, or disappearance.
In the case of the death, incompetency, or disappearance of any
affected farmer or manufacturer who would otherwise receive an indemnity
payment, such payment may be made to the person or persons specified in
the regulations contained in part 707 of this chapter. The person
requesting such payment shall file Form FSA-325, ``Application for
Payment of Amounts Due Persons Who Have Died, Disappeared, or Have Been
Declared Incompetent,'' as provided in that part.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.30 Records and inspection thereof.
(a) The affected farmer, as well as his milk handler and any other
person who furnished information to such farmer or to the county
committee for the purpose of enabling such farmer to receive a milk
indemnity payment under this subpart, shall maintain any existing books,
records, and accounts supporting any information so furnished for 3
years following the end of the year during which the application for
payment was filed. The affected farmer, his milk handler, and any other
person who furnishes such information to the affected farmer or to the
county
[[Page 83]]
committee shall permit authorized representatives of the Department of
Agriculture and the General Accounting Office, during regular business
hours, to inspect, examine, and make copies of such books, records, and
accounts.
(b) The affected manufacturer or any other person who furnishes
information to the Deputy Administrator for the purposes of enabling
such manufacturer to receive an indemnity payment under this subpart
shall maintain any books, records, and accounts supporting any
information so furnished for 3 years following the end of the year
during which the application for payment was filed. The affected
manufacturer or any other person who furnishes such information to the
Deputy Administrator shall permit authorized representatives of the
Department of Agriculture and the General Accounting Office, during
regular business hours, to inspect, examine, and make copies of such
books, records, and accounts.
Sec. 760.31 Assignment.
No assignment shall be made of any indemnity payment due or to come
due under the regulations in this subpart. Any assignment or attempted
assignment of any indemnity payment due or to come due under this
subpart shall be null and void.
Sec. 760.32 Instructions and forms.
The Deputy Administrator shall cause to be prepared such forms and
instructions as are necessary for carrying out the regulations in this
subpart. Affected farmers and manufacturers may obtain information
necessary to make application for a dairy indemnity payment from the
county FSA office. Form FSA-373--Application for Indemnity Payment, is
available at the county ASC office.
[43 FR 10535, Mar. 14, 1978, as amended at 47 FR 24689, June 8, 1982]
Sec. 760.33 Availability of funds.
(a) Payment of indemnity claims will be contingent upon the
availability of FSA funds to pay such claims. Claims will be, to the
extent practicable within funding limits, paid from available funds, on
a first-come, first-paid basis, based on the date FSA approves the
application, until funds available in that fiscal year have been
expended.
(b) DIPP claims received in a fiscal year after all available funds
have been expended will not receive payment for such claims.
[75 FR 41367, July 16, 2010]
Subpart B_General Provisions for Supplemental Agricultural Disaster
Assistance Programs
Source: 74 FR 31571, July 2, 2009, unless otherwise noted.
Sec. 760.101 Applicability.
(a) This subpart establishes general conditions for this subpart and
subparts C through H of this part and applies only to those subparts.
Subparts C through H cover the following programs provided for in the
``2008 Farm Bill'' (Pub. L. 110-246):
(1) Emergency Assistance for Livestock, Honey Bees, and Farm-Raised
Fish Program (ELAP);
(2) Livestock Forage Disaster Program (LFP);
(3) Livestock Indemnity Payments Program (LIP);
(4) Supplemental Revenue Assistance Payments Program (SURE); and
(5) Tree Assistance Program (TAP).
(b) To be eligible for payments under these programs, participants
must comply with all provisions under this subpart and the relevant
particular subpart for that program. All other provisions of law also
apply.
Sec. 760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
(a) The programs in subparts C through H of this part will be
administered under the general supervision and direction of the
Administrator, Farm Service Agency (FSA), and the Deputy Administrator
for Farm Programs, FSA (who is referred to as the ``Deputy
Administrator'' in this part).
(b) FSA representatives do not have authority to modify or waive any
of the provisions of the regulations of this part as amended or
supplemented, except as specified in paragraph (e) of this section.
[[Page 84]]
(c) The State FSA committee will take any action required by the
regulations of this part that the county FSA committee has not taken.
The State FSA committee will also:
(1) Correct, or require a county FSA committee to correct, any
action taken by such county FSA committee that is not in accordance with
the regulations of this part or
(2) Require a county FSA committee to withhold taking any action
that is not in accordance with this part.
(d) No provision or delegation to a State or county FSA committee
will preclude the Administrator, the Deputy Administrator for Farm
Programs, or a designee or other such person, from determining any
question arising under the programs of this part, or from reversing or
modifying any determination made by a State or county FSA committee.
(e) The Deputy Administrator for Farm Programs may authorize State
and county FSA committees to waive or modify non-statutory deadlines, or
other program requirements of this part in cases where lateness or
failure to meet such requirements does not adversely affect operation of
the programs in this part. Participants have no right to seek an
exception under this provision. The Deputy Administrator's refusal to
consider cases or circumstances or decision not to exercise this
discretionary authority under this provision will not be considered an
adverse decision and is not appealable.
Sec. 760.103 Eligible producer.
(a) In general, the term ``eligible producer'' means, in addition to
other requirements as may apply, an individual or entity described in
paragraph (b) of this section that, as determined by the Secretary,
assumes the production and market risks associated with the agricultural
production of crops or livestock on a farm either as the owner of the
farm, when there is no contract grower, or a contract grower of the
livestock when there is a contract grower.
(b) To be eligible for benefits, an individual or entity must be a:
(1) Citizen of the United States;
(2) Resident alien; for purposes of this part, resident alien means
``lawful alien'' as defined in 7 CFR part 1400;
(3) Partnership of citizens of the United States; or
(4) Corporation, limited liability corporation, or other farm
organizational structure organized under State law.
Sec. 760.104 Risk management purchase requirements.
(a) To be eligible for program payments under:
(1) ELAP, SURE, and TAP, eligible producers for any commodity at any
location for which the producer seeks benefits must have for every
commodity on every farm in which the producer has an interest for the
relevant program year:
(i) In the case of an ``insurable commodity,'' (which for this part
means a commodity for which the Deputy Administrator determines
catastrophic coverage is available from the USDA Risk Management Agency
(RMA)) obtained catastrophic coverage or better under a policy or plan
of insurance administered by RMA under the Federal Crop Insurance Act
(FCIA) (7 U.S.C. 1501-1524), except that this obligation will not
include crop insurance pilot programs so designated by RMA or to forage
crops intended for grazing, and
(ii) In the case of a ``noninsurable commodity,'' (which is any
commodity for which, as to the particular production in question, is not
an ``insurable commodity,'' but for which coverage is available under
the Noninsured Crop Disaster Assistance Program (NAP) operated under 7
CFR part 1437), have obtained NAP coverage by filing the proper
paperwork and fee within the relevant deadlines, except that this
requirement will not include forage on grazing land.
(2) LFP, with respect to those grazing lands incurring losses for
which assistance is being requested, eligible livestock producers must
have:
(i) Obtained a policy or plan of insurance for the forage crop under
FCIA, or
(ii) Filed the required paperwork and paid the administrative fee by
the applicable State filing deadline for NAP coverage for that grazing
land.
[[Page 85]]
(b) Producers who did not purchase a policy or plan of insurance
administered by RMA in accordance with FCIA (7 U.S.C. 1501-1524), or NAP
coverage for their applicable crops, will not be eligible for assistance
under ELAP, LFP, SURE, and TAP, as provided in paragraph (a) of this
section unless the producer is one of the classes of farmers for which
an exemption under Sec. 760.107 apply, is exempt under the ``buy-in''
provisions of this subpart, or is granted relief from that requirement
by the Deputy Administrator under some other provision of this part.
(c) Producers who have obtained insurance by a written agreement as
specified in Sec. 400.652(d) of this title even though that production
would not normally be considered an ``insurable commodity'' under the
rules of this subpart, will be considered to have met the risk
management purchase requirement of this subpart with respect to such
production. The commodity to which the agreement applies will be
considered for purposes of this subpart to be an ``insurable
commodity.''
(d) Producers by an administrative process who were granted NAP
coverage for the relevant period as a form of relief in an
administrative proceeding, or who were awarded NAP coverage for the
relevant period through an appeal through the National Appeals Division
(NAD), will be considered as having met the NAP eligibility criteria of
this section for that crop as long as the applicable NAP service fee has
been paid.
(e) The risk management purchase requirement for programs specified
under this part will be determined based on the initial intended use of
a crop at the time a policy or plan of insurance or NAP coverage was
purchased and as reported on the acreage report.
[74 FR 31571, July 2, 2009, as amended at 74 FR 46673, Sept. 11, 2009]
Sec. 760.105 Waiver for certain crop years; buy-in.
(a) For the 2008 crop year, the insurance or NAP purchase
requirements of Sec. 760.104 (this is referred to as the ``purchase''
requirement) will be waived for eligible producers for losses during the
2008 crop year if the eligible producer paid a fee (buy-in fee) equal to
the applicable NAP service fee or catastrophic risk protection plan fee
to the Secretary by September 16, 2008. Payment of a buy-in fee under
this section is for the sole purpose of becoming eligible for
participation in ELAP, LFP, SURE, and TAP. Payment of a buy-in fee does
not provide any actual insurance or NAP coverage or assistance.
(b) For the 2009 crop year, the purchase requirement will be waived
for purchases where the closing date for coverage occurred prior to
August 14, 2008, so long as the buy-in fee set by the Secretary of
Agriculture was paid by January 12, 2009.
(c) Any producer of 2008 commodities who is otherwise ineligible
because of the purchase requirement and who did not meet the conditions
of paragraph (a) of this section may still be covered for ELAP, SURE, or
TAP assistance if the producer paid the applicable fee described in
paragraph (d) of this section no later than May 18, 2009, provided that
in the case of each:
(1) Insurable commodity, excluding grazing land, the eligible
producers on the farm agree to obtain a policy or plan of insurance
under FCIA (7 U.S.C. 1501-1524), excluding a crop insurance pilot
program under that subtitle, for the next insurance year for which crop
insurance is available to the eligible producers on the farm at a level
of coverage equal to 70 percent or more of the recorded or appraised
average yield indemnified at 100 percent of the expected market price,
or an equivalent coverage, and
(2) Noninsurable commodity, the eligible producers on the farm must
agree to file the required paperwork, and pay the administrative fee by
the applicable State filing deadline, for NAP for the next year for
which a policy is available.
(d) For producers seeking eligibility under paragraph (c) of this
section, the applicable buy-in fee for the 2008 crop year was the
catastrophic risk protection plan fee or the applicable NAP service fee
in effect prior to NAP service fee adjustments specified in the 2008
Farm Bill.
[[Page 86]]
Sec. 760.106 Equitable relief.
(a) The Secretary may provide equitable relief on a case-by-case
basis for the purchase requirement to eligible participants that:
(1) Are otherwise ineligible or provide evidence, satisfactory to
FSA, that the failure to meet the requirements of Sec. 760.104 for one
or more eligible crops on the farm was unintentional and not because of
any fault of the participant, as determined by the Secretary, or
(2) Failed to meet the requirements of Sec. 760.104 due to the
enactment of the 2008 Farm Bill after the:
(i) Applicable sales closing date for a policy or plan of insurance
in accordance with the FCIA (7 U.S.C. 1501-1524) or
(ii) Application closing date for NAP.
(b) Equitable relief will not be granted to participants in
instances of:
(1) A scheme or device that had the effect or intent of defeating
the purposes of a program of insurance, NAP, or any other program
administered under this part or elsewhere in this title,
(2) An intentional decision to not meet the purchase or buy-in
requirements,
(3) Producers against whom sanctions have been imposed by RMA or FSA
prohibiting the purchase of coverage or prohibiting the receipt of
payments otherwise payable under this part,
(4) Violations of highly erodible land and wetland conservation
provisions of 7 CFR part 12,
(5) Producers who are ineligible under any provisions of law,
including regulations, relating to controlled substances (see for
example 7 CFR 718.6), or
(6) A producer's debarment by a federal agency from receiving any
federal government payment if such debarment included payments of the
type involved in this matter.
(c) In general, no relief that is discretionary will be allowed
except upon a finding by the Deputy Administrator or the Deputy
Administrator's designee that the person seeking the relief acted in
good faith as determined in accordance with such rules and procedures as
may be set by the Deputy Administrator.
[74 FR 31571, July 2, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec. 760.107 Socially disadvantaged, limited resource, or beginning
farmer or rancher.
(a) Risk management purchase requirements, as provided in Sec.
760.104, will be waived for a participant who, as specified in
paragraphs (b)(1) through (3) of this section, is eligible to be
considered a ``socially disadvantaged farmer or rancher,'' a ``limited
resource farmer or rancher,'' or a ``beginning farmer or rancher.''
(b) To qualify for this section as a ``socially disadvantaged farmer
or rancher,'' ``limited resource farmer or rancher,'' or ``beginning
farmer or rancher,'' participants must meet eligibility criteria as
follows:
(1) A ``socially disadvantaged farmer or rancher'' is, for this
section, a farmer or rancher who is a member of a socially disadvantaged
group whose members have been subjected to racial or ethnic prejudice
because of their identity as members of a group without regard to their
individual qualities. Gender is not included as a covered group.
Socially disadvantaged groups include the following and no others unless
approved in writing by the Deputy Administrator:
(i) American Indians or Alaskan Natives,
(ii) Asians or Asian-Americans,
(iii) Blacks or African Americans,
(iv) Native Hawaiians or other Pacific Islanders, and
(v) Hispanics.
(2) A ``limited resource farmer or rancher'' means for this section
a producer who is both:
(i) A producer whose direct or indirect gross farm sales do not
exceed $100,000 in both of the two calendar years that precede the
calendar year that corresponds to the relevant program year, adjusted
upwards for any general inflation since fiscal year 2004, inflation as
measured using the Prices Paid by Farmer Index compiled by the National
Agricultural Statistics Service (NASS), and
[[Page 87]]
(ii) A producer whose total household income is at or below the
national poverty level for a family of four, or less than 50 percent of
the county median household income for the same two calendar years
referenced in paragraph (b)(2)(i) of this section, as determined
annually using Commerce Department data. (Limited resource farmer or
rancher status can be determined using a Web site available through the
Limited Resource Farmer and Rancher Online Self Determination Tool
through the National Resource and Conservation Service at http://
www.lrftool.sc.egov.usda.gov/tool.asp.)
(3) A ``beginning farmer or rancher'' means for this section a
person or legal entity who for a program year both:
(i) Has never previously operated a farm or ranch, or who has not
operated a farm or ranch in the previous 10 years, applicable to all
members (shareholders, partners, beneficiaries, etc., as fits the
circumstances) of an entity, and
(ii) Will have or has had for the relevant period materially and
substantially participated in the operation of a farm or ranch.
(c) If a legal entity requests to be considered a ``socially
disadvantaged,'' ``limited resource,'' or ``beginning'' farmer or
rancher, at least 50 percent of the persons in the entity must in their
individual capacities meet the definition as provided in paragraphs
(b)(1) through (3) of this section and it must be clearly demonstrated
that the entity was not formed for the purposes of avoiding the purchase
requirements or formed after the deadline for the purchase requirement.
[74 FR 31571, July 2, 2009, as amended at 76 FR 54075, Aug. 31, 2011]
Sec. 760.108 Payment limitation.
(a) For 2008, no person, as defined and determined under the
provisions in part 1400 of this title in effect for 2008 may receive
more than:
(1) $100,000 total for the 2008 program year under ELAP, LFP, LIP,
and SURE combined or
(2) $100,000 for the 2008 program year under TAP.
(b) For 2009 and subsequent program years, no person or legal
entity, excluding a joint venture or general partnership, as determined
by the rules in part 1400 of this title may receive, directly or
indirectly, more than:
(1) $100,000 per program year total under ELAP, LFP, LIP, and SURE
combined; or
(2) $100,000 per program year under TAP.
(c) The Deputy Administrator may take such actions as needed,
whether or not specifically provided for, to avoid a duplication of
benefits under the multiple programs provided for in this part, or
duplication of benefits received in other programs, and may impose such
cross-program payment limitations as may be consistent with the intent
of this part.
(1) FSA will review ELAP payments after the funding factor as
specified in Sec. 760.208 is determined to be 100 percent. FSA will
ensure that total ELAP payments provided to a participant in a year,
together with any amount provided to the same participant for the same
loss as a result of any Federal crop insurance program, the Noninsured
Crop Disaster Assistance Program, or any other Federal disaster program,
plus the value of the commodity that was not lost, is not more than 95
percent of the value of the commodity in the absence of the loss, as
estimated by FSA.
(2) [Reserved]
(d) In applying the limitation on average adjusted gross income
(AGI) for 2008, an individual or entity is ineligible for payment under
ELAP, LFP, LIP, SURE, and TAP if the individual's or entity's average
adjusted gross income (AGI) exceeds $2.5 million for 2007, 2006, and
2005 under the provisions in part 1400 of this title in effect for 2008.
(e) For 2009 through 2011, the average AGI limitation provisions in
part 1400 of this title relating to limits on payments for persons or
legal entities, excluding joint ventures and general partnerships, with
certain levels of average adjusted gross income (AGI) will apply under
this subpart and will apply to each applicant for ELAP, LFP, LIP, SURE,
and TAP. Specifically, for 2009 through 2011, a person or legal entity
with an average adjusted gross nonfarm income, as defined in Sec.
1404.3 of this title, that exceeds $500,000 will not
[[Page 88]]
be eligible to receive benefits under this part.
(f) The direct attribution provisions in part 1400 of this title
apply to ELAP, LFP, LIP, SURE, and TAP for 2009 and subsequent years.
Under those rules, any payment to any legal entity will also be
considered for payment limitation purposes to be a payment to persons or
legal entities with an interest in the legal entity or in a sub-entity.
If any such interested person or legal entity is over the payment
limitation because of direct payment or their indirect interests or a
combination thereof, then the payment to the actual payee will be
reduced commensurate with the amount of the interest of the interested
person in the payee. Likewise, by the same method, if anyone with a
direct or indirect interest in a legal entity or sub-entity of a payee
entity exceeds the AGI levels that would allow a participant to directly
receive a payment under this part, then the payment to the actual payee
will be reduced commensurately with that interest. For all purposes
under this section, unless otherwise specified in part 1400 of this
title, the AGI figure that will be relevant for a person or legal entity
will be an average AGI for the three taxable years that precede the most
immediately preceding complete taxable year, as determined by CCC.
[74 FR 31571, July 2, 2009, as amended at 74 FR 46673, Sept. 11, 2009]
Sec. 760.109 Misrepresentation and scheme or device.
(a) A participant who is determined to have deliberately
misrepresented any fact affecting a program determination made in
accordance with this part, or otherwise used a scheme or device with the
intent to receive benefits for which the participant would not otherwise
be entitled, will not be entitled to program payments and must refund
all such payments received, plus interest as determined in accordance
with part 792 of this chapter. The participant will also be denied
program benefits for the immediately subsequent period of at least 2
crop years, and up to 5 crop years. Interest will run from the date of
the original disbursement by FSA.
(b) A participant will refund to FSA all program payments, plus
interest, as determined in accordance with part 792 of this chapter,
provided however, that in any case it will run from the date of the
original disbursement, received by such participant with respect to all
contracts or applications, as may be applicable, if the participant is
determined to have knowingly done any of the following:
(1) Adopted any scheme or device that tends to defeat the purpose of
the program,
(2) Made any fraudulent representation, or
(3) Misrepresented any fact affecting a program determination.
Sec. 760.110 Appeals.
(a) Appeals. Appeal regulations set forth at parts 11 and 780 of
this title apply to this part.
(b) Determinations not eligible for administrative review or appeal.
FSA determinations that are not in response to a specific individual
participant's application are not to be construed to be individual
program eligibility determinations or adverse decisions and are,
therefore, not subject to administrative review or appeal under parts 11
or 780 of this title. Such determinations include, but are not limited
to, application periods, deadlines, coverage periods, crop years, fees,
prices, general statutory or regulatory provisions that apply to
similarly situated participants, national average payment prices,
regions, crop definition, average yields, and payment factors
established by FSA for any of the programs for which this subpart
applies or similar matters requiring FSA determinations.
Sec. 760.111 Offsets, assignments, and debt settlement.
(a) Any payment to any participant under this part will be made
without regard to questions of title under State law, and without regard
to any claim or lien against the commodity, or proceeds, in favor of the
owner or any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings in part 792 of this title
apply to payments made under this part.
[[Page 89]]
(b) Any participant entitled to any payment may assign any
payment(s) in accordance with regulations governing the assignment of
payments in part 1404 of this title.
Sec. 760.112 Records and inspections.
(a) Any participant receiving payments under any program in ELAP,
LFP, LIP, SURE, or TAP, or any other legal entity or person who provides
information for the purposes of enabling a participant to receive a
payment under ELAP, LFP, LIP, SURE, or TAP, must:
(1) Maintain any books, records, and accounts supporting the
information for 3 years following the end of the year during which the
request for payment was submitted, and
(2) Allow authorized representatives of USDA and the Government
Accountability Office, during regular business hours, to inspect,
examine, and make copies of such books or records, and to enter the farm
and to inspect and verify all applicable livestock and acreage in which
the participant has an interest for the purpose of confirming the
accuracy of information provided by or for the participant.
(b) [Reserved]
Sec. 760.113 Refunds; joint and several liability.
(a) In the event that the participant fails to comply with any term,
requirement, or condition for payment or assistance arising under ELAP,
LFP, LIP, SURE, or TAP and if any refund of a payment to FSA will
otherwise become due in connection with this part, the participant must
refund to FSA all payments made in regard to such matter, together with
interest and late-payment charges as provided for in part 792 of this
chapter provided that interest will in all cases run from the date of
the original disbursement.
(b) All persons with a financial interest in an operation or in an
application for payment will be jointly and severally liable for any
refund, including related charges, that is determined to be due FSA for
any reason under this part.
Sec. 760.114 Minors.
A minor child is eligible to apply for program benefits under ELAP,
LFP, LIP, SURE, or TAP if all the eligibility requirements are met and
the provision for minor children in part 1400 of this title are met.
Sec. 760.115 Deceased individuals or dissolved entities.
(a) Payments may be made for eligible losses suffered by an eligible
participant who is now a deceased individual or is a dissolved entity if
a representative, who currently has authority to enter into a contract,
on behalf of the participant, signs the application for payment.
(b) Legal documents showing proof of authority to sign for the
deceased individual or dissolved entity must be provided.
(c) If a participant is now a dissolved general partnership or joint
venture, all members of the general partnership or joint venture at the
time of dissolution or their duly authorized representatives must sign
the application for payment.